Monthly Archives: January 2021

Litigation arising out of Hurricane Harvey (Harvey) has been ongoing since the first lawsuit was filed within days of Harvey making landfall onAugust 25, 2017, inundating Houston with an unprecedented amount of rainfall and flooding. The litigation, which is pending in the U.S. Court of Federal Claims, centers around the U.S. Army Corps of Engineers decision to release the Addicks and Barker reservoirs after Harvey made landfall. These reservoirs were constructed in the 1940s to reduce the potential of catastrophic flooding in downtown Houston and the Houston Ship Channel.

After Harvey made landfall, the reservoirs began filling up at an alarming rate and water began to flow around the edge of one of the dams. On the morning of August 28, 2017, the U.S. Army Corp of Engineers was forced to begin releasing water to ensure that the reservoirs did not experience catastrophic overflow and/or failure. Those properties that were affected by flooding due to the reservoirs overflowing pre-release are referred to as the upstream claimants in the litigation. The properties that were flooded after the reservoirs were intentionally released are referred to as the downstream claimants.

With respect to the status of the litigation, Judge Charles F. Lettow overseeing the upstream claimants actions heard testimony and received evidence for certain test or bell-weather claims in May 2019. He issued his opinion and order in December 2019, finding that the governments conduct relating to the reservoirs and the attendant flooding of various properties constituted an unconstitutional taking of a flowage easement under the Fifth Amendment to the U.S. Constitution, and that the upstream claimants therefore were entitled to compensation from the government. Judge Lettow then ordered the test cases to proceed with discovery on damages, providing that he would receive testimony related to the test properties damages in November 2020. Unfortunately, it appears that the damages phase has been continued for the time being, presumably because of COVID-19 related issues.

Conversely, Judge Loren A. Smith overseeing the litigation involving the downstream claimants actions granted the governments motion to dismiss effectively finding that neither Texas law nor federal law creates a protected property interest in perfect flood control in the face of an Act of God. The final order was executed in September 2020 and the downstream claimants have formally begun the appellate process.

The upstream claims obviously have the most viable subrogation potential at this time since Judge Lettow overseeing those claims has already issued an affirmative finding of liability against the government. While the downstream claims present more of a challenge given the adverse ruling and pending appeals process, we nevertheless recommend that such claims be referred to ensure the viability of the claims are protected should the adverse ruling ultimately be reversed.

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Hurricane Harvey Litigation Update: Conflicting Opinions Spur Trial on Damages and Appeal - JD Supra

On January 1 the minimum wage in many U.S. states and cities increased. As reported in The New York Times in 27 of these places the pay floor will reach or exceed $15 an hour.

These pay increases are intended to help low-income people, who obviously could use the help. It is hard to imagine how anyone could live on the current $7.25 federal minimum. But intent is one thing and actual consequences may be quite different. According to standard microeconomics, when labors price increases the amount employers will buy decreases.

Experts at the Congressional Budget Office recently estimated that increasing the minimum wage to $15 would lift 1.3 million people out of poverty and increase paychecks for 27 million an excellent result! But they also predicted that the increase would render 1.3 million people jobless, with young people, part-time workers, and those with no education beyond high school disproportionately hurt.

How do we calculate the net benefit of such legislation?

Oddly enough, though, increasing the minimum wage to $15 offer a golden opportunity to lawyers. It invites them to bring class action lawsuits that, while increasing their own incomes, will also help those poor people who otherwise would be getting the short end of the stick.

The lawsuits would be based on the Fifth Amendments Eminent Domain clause, which says that that private property may not be taken for public use, without just compensation.

Poor people generally have little property in the narrower sense of the term: real estate, stocks, bonds, bank accounts. Their most important possession is therefore their ability to earn a living by working. As Benjamin Franklin famously observed, He that hath a trade hath an estate.

A minimum wage law which drives someone into unemployment deprives that person of his or her most valuable property.

A minimum wage law which drives someone into unemployment deprives that person of his or her most valuable property. Government may justify this damage on the grounds that it benefits people fortunate enough to retain their jobs, who will be earning more certainly an important public purpose. But the Fifth Amendment requires government to give just compensation to people injured by that law.

Just compensation here must do more than replace what people could have earned if they could find a job. Income, although very important, is not the only reward for working. Working is educational. It helps employees learn new skills leading to better opportunities and to develop habits and dependability that employers value. A job also reinforces the employees self-respect and community standing.

The just compensation required by the Fifth Amendment therefore will be for government to hire everyone who cant find other work, to pay that person the minimum hourly rate that its own laws require, and to include all legally required fringe benefits.

A democratic government probably wouldnt do this without external pressure, since the taxes to pay for it would be unpopular. But a successful class action on behalf of all unemployed people could force government to choose between guaranteeing jobs for everyone or repealing the popular minimum wage laws.

Lawyers do very well financially when they win class action lawsuits. Even a tiny percentage of the results of this class action would make the lawyers rich. But they would have earned it.

Two major benefits for the general public would result. It would destroy unemployment, thereby increasing everyones security no small achievement in a dynamic economy where nobody with a good job today can count on being employed tomorrow.

The public would also benefit from the services performed by the people employed by the government. Unemployment has never rested on a lack of things that need to be done. As President Franklin D. Roosevelt said during the Great Depression, why pay people for doing nothing when there is lot of useful work to be done?

Let it be done!

Paul deLespinasse

News Max

Excerpt from:
Increasing the Minimum Wage: Big Opportunities for Lawyers - LA Progressive

Vincent J. Napoleon, a retired US Air Force Colonel, a former partner at Nixon Peabody LLP and a 1984 graduate of the University of Pittsburgh School of Law discusses the urgency of removing President Donald Trump from office...

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I bear true faith and allegiance to the same

As a young newly minted second lieutenant in the United States Air Force and through each promotion to the rank of Colonel, I swore to support and defend the Constitution of the United States against all enemies, Foreign and domestic [and] that I take this obligation freely, without any mental reservation or purpose of evasion Similarly, the President and the Commander in Chief of the United States also swears to the best of [his] ability, preserve, protect and defend the Constitution of the United States. In supporting and defending the constitution, the President as Commander-in-Chief and his military officers, in short, agree to preserve our democracy, to defend against insurrection, sedition, and any action, conduct, and behavior that would upend our form of Government.

Much like December 7, 1941, January 6, 2021 will be a date that will live in infamy the date on which President Donald J. Trump engaged in an attempted overthrow of the United States Government through his inspired siege of the U.S. Capitol building. The interruption of our democracy in action as Congress engaged in the business of confirming electoral votes, which would ultimately make President-Elect Joe Bidens defeat of Donald Trump official, through Trumps inspired seditious and riotous activity was a failed coup. The riots on the U.S. Capitol, the sacred temple of democracy where the peoples business is conducted, as instigated by the President raises the question as to whether Donald Trump supports the Constitution. In fact, it has been argued that Donald Trump does not care about the Constitution and what it represents. Certainly, any Commander-in-Chief whose conduct is such that it compromises our democracy and diminishes our leadership position in the world does not support the Constitution.

In inspiring the siege on the U.S. Capitol and therefore our democracy while launching an attack on our legislature and our electoral process, Donald Trump exhibited a severe lack of reverence for the Constitution and our system of government and the related institutions. Acting much like an authoritarian leader and dictator, Donald Trump attempted to pressure the Vice President of the United States to engineer a coup, tried to pressure the Secretary of State of Georgia to reverse the 2020 Presidential election results, encouraged acts of sedition and insurrection, incited riots against the Government, and in all acted in a way to subvert the Constitution and our democracy which has been in place for more than 200 years. Given the Presidents propensity to exhibit seditious behavior, given his current mental state and with only twelve days remaining in his presidency the most pressing question to be resolved by our leaders in Congress and in the Executive is whether the President is capable of engaging in activity that will dangerously place our democratic system and our national security in grave jeopardy given his conduct. To what extent can we remove this danger to our country?

To avoid the carnage resulting from the Presidents action and his failure to support and defend the constitution and therefore our democracy, calls throughout the hallowed halls of Congress and from all corners of the country have been made for the removal of Donald Trump from office. The question is how? Which mechanism should be used to immediately remove this threat to our democracy and our national security? While impeachment is an avenue, it is not the most expedient approach. Perhaps, the invocation of the 25th Amendment to the United States Constitution could more expeditiously result in Donald Trumps removal from the Oval and more quickly restore global prominence to the Office of the President. Some commentators and pundits believe that invoking the 25th Amendment may send the wrong message to Donald Trumps treasonous followers. However, invoking the 25th Amendment under the circumstances where the President has engaged in seditious conduct could be precedent setting; it sends a message to the world that treasonous conduct especially by a sitting U.S. President will not be embraced in this democracy. It, moreover, sends a message to future leaders that any thought of a coup or related conduct by a President will result in immediate removal from office.

The Twenty-fifth Amendment to the United States Constitution was approved by Congress on July 6, 1965 and ratified by the States on February 10, 1967 in the wake of President John F. Kennedys assassination to resolve issues around what happens upon the death, removal, resignation of the President or his inability to fulfill his responsibility. In its simplest terms, the 25th Amendment is a tool to remove the President from office if he becomes unable to do his job. This could be for a limited period or for the remainder of the Presidents term depending on the circumstances. But it is Section 4 of the 25th Amendment which is most relevant in determining whether Donald Trumps recent conduct of encouraging a coup on this Government should result in his removal from office. More specifically, Section 4 of 25th Amendment states that:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President

It is Vice President Pence and a majority of the Cabinet or some other body the Congress may designate who decides whether the 25th Amendment ought to be invoked. Recognizing that President Trump is unfit and therefore unable to perform his presidential duties House Speaker Nancy Pelosi, Senate Minority Leader Chuck Schumer, and others have on a bipartisan basis called for Donald Trumps removal by invoking the 25th Amendment. According to the Senate Minority Leader, the quickest and most effective wayto remove this president from office would be for the vice president to immediately invoke the 25th Amendment. Some have called for Trumps removal from office by impeachment if the Vice President and the Cabinet refuse to act. This approach, which lacks immediacy, would require two steps impeachment by the House of Representatives and a trial by the Senate for removal. Whichever approach is used, there is a consensus that removing Donald Trump as president is urgent. Invoking the 25th Amendment will involve Vice President Pence and members of the cabinet coming together in agreement to move forward to remove Donald Trump from office. While the law would support Donald Trumps removal from office by invoking the 25th Amendment given his seditious conduct and his apparent diminishing mental state, other factors may drive a different result. Factors such as politics, loyalty, fear of reprisal, and retribution may cause cabinet members and Vice President Pense not to invoke the 25th Amendment. Worst case and as one CNN commentator intimated, we may be better served by keeping Donald Trump on the golf course at Mar-a-Lago until January 20th where his influence and involvement in significant decisions may be minimized. Knowing that the invocation of the 25th Amendment is looming over him and the embarrassment of being forced out of office, may compel Donald Trump to voluntarily resign.

Donald Trumps action, his seditious activity, his effort to lead a coup and overthrow the Government while causing our teetering democracy to fall into disarray is sufficient for our Congressional and Executive leaders to invoke the 25th Amendment to remove Donald Trump from office. Donald Trump has failed this country and he has failed his oath to protect and defend the Constitution of the United States. The most expedient path to end this danger to our republic and to remove the president immediately is to invoke Section 4 of the 25th Amendment. Vice President Pence, members of the Cabinet, Nancy Pelosi, Chuck Schumer, Mitch McConnell, invoke the 25th now! Donald Trump must be removed, post-haste!

Vincent J. Napoleon is a seasoned C-suite business leader, legal executive, and retired U.S. Air Force Colonel with substantial experience representing global Fortune 100 and 500 companies in a number of business sectors. He serves as an Arbitrator with the American Arbitration Association and is the author of numerous, articles, book chapters, and the book Pan-African Infrastructure Development and Public-Private Partnerships. He received his Juris Doctor from the University of Pittsburgh School of Law and his BSBA from Georgetown University McDonough School of Business.

Suggested citation: Vincent J. Napoleon, Invoking the 25th Amendment to the United States Constitution: The Removal of President Donald J. Trump, JURIST Professional Commentary, January 8, 2021, https://www.jurist.org/commentary/2021/01/vincent-napoleon-25-amendment/.

This article was prepared for publication by Brianna Bell, a JURIST Senior Editor. Please direct any questions or comments to her at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Invoking the 25th Amendment to the United States Constitution: The Removal of President Donald J. Trump - JURIST

When Congress convened on Wednesday to certify the results from each respective states electoral college votes, from the previous month, it was clear there would be contention among representatives on the upcoming votes, however, few could have anticipated the actions that were about to be taken.

The siege on the U.S. Capitol would result in the death of a police officer, a woman being shot and killed, as well as damage to the historical building and its artifacts.

As with the following of each presidential election, Congress began Wednesday with the historical and ceremonial process of accepting each states certificate of votes from their respective Electoral College convenings.

In Ohio, for example, appointed members met on Monday, December 14 under the direction of Ohio Lieutenant Governor Jon Husted to affirm the states vote for president.

Ohio is a winner-take-all state, which means whichever candidate for president wins the popular vote within the state becomes the recipient of all of its states electoral votes.

Two states, Maine and Nebraska, divide their Electoral College votes by districts allowing for proportional allocation of electorates in selecting who will ultimately become the next president and vice president of the country.

Fifteen states and the District of Columbia pledge their electoral votes not on who wins the popular vote within their state, but who nationally wins the popular vote.

At the completion of the convenings on the first Monday after the second Wednesday of December, electors sign and record their votes on six certificates.

One certificate is sent to the President of the Senate, two are sent to the U.S. Federal Archivist, two are sent by registered mail to their own states Secretary of State and one is sent to the Chief Judge of the closest United States District Court.

Each certificate, which was sent to the Senate, is the official set of documents seen Wednesday in which is used to officially certify who will become the new leaders of the Executive Branch of the United States come January 20.

Numerous Senators and Members of the House of Representatives had publically stated before Wednesday their intent to challenge certain states allocation of electors.

Local Muskingum County U.S. Congressman Troy Balderson (R) said he would not contest the vote while the countys other U.S. Congressman Bill Johnson (R) said he would.

Due to the drawing of districts following the 2010 U.S. Census, Muskingum County is split and residents, depending on where they live, have either one of the two aforementioned representatives.

Both of Ohios U.S. Senators, Rob Portman (R) and Sherrod Brown (D), made clear before Wednesday that neither of them would contest the vote.

While rare, and often lacking the necessary momentum to move forward, votes have been contested before such as in 2000 following issues within counties in Flordia having complications with hanging chads on voting cards.

In many cases, a member of the U.S. House of Representatives will object but lack a sponsoring Senator, which is required to allow further discussion on the topic.

In 2004, Democrats were able to delay the final certification process by objecting to Ohios selection of electors alleging numerous, serious election irregularities that led to an alleged significant disenfranchisement of voters.

That issue was overturned by a full vote of each chamber of Congress.

This year was different however in that while Democrats controlled the U.S. House of Representatives, the Senate likely would have been split on partisan lines leaving Vice President Mike Pence in a precarious position to overturn the election.

Had that occurred on Wednesday, the United States House of Representatives would have chosen the next President and Vice President of the United States, however, each state would each only receive one vote, likely securing the next term for the incumbents, President Donald Trump and Vice President Pence.

The last time Congress selected a president was in 1877 soon after the Civil War.

As history would have it however while the certification process was ongoing individuals began to storm the U.S. Capitol.

During that siege, Capitol Police and other law enforcement officers were overrun as large groups broke past barriers and onto the Capitol steps before breaking windows and doors to gain access to the physical building.

One concerning sign of trouble, individuals chanting their intention to hang the Vice President on Capitol Grounds as they advanced, coincided with a noose and structure that had recently been constructed nearby.

Secret Service quickly extracted the Vice President and within the following minutes other congressional leaders, such as Speaker of the House Nancy Pelosi (D), was taken away to a secure bunker under the Capitol Building.

Some members, including local representative Johnson, were unable to escape, forced to shelter in place as attackers got closer.

In an interview shortly after the incident, Johnson spoke on Fox News about his experience.

According to Johnson, during debate security came in and took Pelosi as well as Majority Leader Steny Hoyer (D) and Minority Whip Steve Scalise (R) out of the House Chambers.

Soon after, security informed the representatives that the capitol had been breached and asked them to remain quiet.

Tear gas was being deployed in the Capitol rotunda and members were instructed to reach under their seats and retrieve masks.

The special CBRN Escape Hoods, designed to protect wearers from chemical, biological and radiological events was one of many security enhancements installed after the attacks of September 11, 2001.

In a photo retrieved by Y-City News, Johnson can be seen sitting on steps in the House Chamber holding his escape hood.

You could actually hear the beating on the door, said Johnson, who spent a large portion of his career in the U.S. Military.

Johnson elaborated to the host on Fox News that the door that was being attacked was the very one the President of the United States would enter through when coming to present the yearly State of the Union address.

Soon after members were also extracted from the chamber, while Johnson didnt disclose where he was taken, other members he was near reported being taken to an underground bunker beneath the Capitol building, which until that day had yet to been publically proven to even exist.

Both Balderson and Johnson issued public comments, like many of their colleagues, condemning the act of violence and destruction.

Balderson, who did not respond to a request for comment from Y-City News on his experience during the siege, said he was deeply disheartened by the violence that occurred.

While I am a firm believer in the First Amendment and Americans right to protest, what our nation has witnessed on Capitol Hill today is not protected by the First Amendment, said Balderson in a written statement. These behaviors are deeply un-American and threaten the very foundation of our Republic.

Following his statement, Balderson issued another letter Friday where he called for a full investigation into how the events Wednesday were allowed to transpire and request for assurances that they would never occur again.

Johnson, like Balderson, thanked the heroic actions of Capitol Police and gave their sympathies to the family of Officer Brian Sicknick, who was killed Wednesday.

Following the events Wednesday afternoon, Congress reconvened and finalized the certification of the election.

The siege caused many representatives who had previously said they would contest the election to cease their objections citing the need for a peaceful transition of power.

Johnson however continued to object to the certification of both Arizonas and Pennsylvanias certifications citing what he said he saw as an unconstitutional act in those states.

Further explained during his interview with Fox News, Johnson said his constituents felt their voices were being silenced by officials and judges in other states.

It was not about an attempt to overthrow or overturn the electoral college election, said Johnson. It was about bringing light to the fact that some states had violated their own constitution and that is wrong.

Citing Trump as the reason for the siege on the Capitol, almost every digital account held by the president was suspended or removed.

Most notably his Twitter account, which had the largest following, was one such account taken down, often the presidents chosen medium of communication.

Multiple members of his cabinet and staff resigned in protest, with the possibility of the invoking of the twenty-fifth amendment being enacted by the Vice President being alleged to be considered by Pence.

Sunday evening, Pelosi said the U.S. House of Representatives would move forward on Monday with a resolution giving Pence 24-hours to take control of the presidency.

If action is not taken, Pelosi said the House would move to impeach Trump by mid-week.

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Local leaders respond to siege on capitol - Y-City News