2018
May
04
Friday
Clayton Collins
Director, editorial innovation

There’s lots of coverage today about what one report called the “chaotic debut” of the US president’s latest legal team.

Other important stories have practically no public profile. 

Every day the Monitor’s photo editor, Alfredo Sosa, delivers options for the Viewfinder feature at the bottom of this package. They’re “of the day.” Some are joyful, some somber. We choose one to round out the Daily in some way.

One image that he offered yesterday didn’t make the issue but elbowed back into thought late last night and then again this morning. It showed the arrival at Delaware’s Dover Air Force Base of a “transfer case” containing the remains of US Army Spc. Gabriel D. Conde.

Conde, who was 22 and from Loveland, Colo., was killed by small-arms fire April 30 in Afghanistan – in a war that began when he was 5 years old and from which he was scheduled to be redeployed to Alaska this month. April 30 was also the day a blast in Kabul killed at least 25 people, including nine journalists – other people doing their jobs.

Wherever we stand on war, on presidencies, on any number of social divides, we can draw inspiration from those devoted to deliberate action that’s intended to help – including action that carries great personal risk.

Democracy “fails its way to success,” as a professor writes in Foreign Affairs.

Earlier this week, historian Jon Meacham spoke to NPR. “I think this is as important a moment as the hours after the Civil War,” he said, “when we were trying to decide what kind of country we were going to truly be. There's a lot to work on. But ultimately, the story has turned out well.”

Now to our five stories for your Friday, looking into new thinking around workforce definitions, citizenship, and a power relationship in a tense region. 

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1. Who’s an employee? A California ruling updates gig-economy debate.

Most headlines about a new California ruling that could lead to the reclassification of many independent contractors as employees focus on the "seismic" changes it may bring. Lawyers on both sides say this battle has actually been going on for decades. Still, this decision should catch the attention of anyone concerned with the rules of the modern workforce.

Lucy Nicholson/Reuters/File
Uber driver Aaron Levin (r.) holds his son as he joins other Uber drivers protesting working conditions in Santa Monica, Calif., in 2014. A new ruling by the state’s high court stands to redefine such ‘gig economy’ work, affecting the benefits of those who do it.

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The California Supreme Court this week handed down a ruling that could not only shake up Silicon Valley companies like Uber and Lyft that rely on gig workers, labor analysts say, but also draw an important new level of attention to a long-running battle for worker protections against misclassification. The decades-old debate has intensified in recent years, as the US labor market sees more employers relying on independent contractors, on-demand workers, or temps instead of full-time employees. The ruling pushes back on the trend, carrying with it the weight of the highest court in a state with a workforce of 19 million. Employer defense lawyers worry that it could have negative consequences, especially for small businesses: “More people might get money off lawsuits but … it’ll now be tougher to find work,” says lawyer John Fagerholm. But labor advocates say the decision pushes both employers and the public to reassess how they want to treat the people who provide services in a rapidly changing world. “It opens up opportunities to think again about … how do we want to shape the future of work?” says Saba Waheed, research director of the University of California, Los Angeles Labor Center.

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Who’s an employee? A California ruling updates gig-economy debate.

The California Supreme Court this week handed down a ruling that makes it harder for employers to classify their workers as independent contractors. The decision could not only shake up Silicon Valley companies like Uber and Lyft that rely on gig workers, labor analysts say; it also draws an important new level of attention to a long-running battle for worker protections against misclassification.

The ruling, handed down Monday in a case involving drivers for Southern California courier company Dynamex, requires employers to pass a three-step, or ‘ABC,’ test before they can legally classify their workers as independent contractors. (That test is already the standard in Massachusetts and New Jersey.) The new standards could force ride-hailing platforms and other Silicon Valley start-ups to reassess their business models, since employees qualify for higher pay, benefits, and legal protections that contractors don’t. They could also apply to conventional companies in delivery service, transportation, and construction, among others.

Employer defense attorneys worry that the ruling could further discourage industry in California, already notorious, they say, for a tangled web of anti-business regulations and worker protection laws. Labor advocates say the decision is a win for those working to ensure that companies, including those in the gig economy, comply with traditional labor laws. It also gets the public thinking again about the abusive practice of misclassification – and more broadly, the social contracts in our labor system.

“Uber and Lyft are kind of the poster children to some extent for this debate,” says Celine McNicholas at the left-leaning Economic Policy Institute in Washington. “We become more aware of these issues, and it’s wonderful to have these decisions shine a light on the reality of what folks delivering our FedEx packages and driving us to and from friends’ houses are experiencing.

“It’s about giving thought to the economy we’re supporting,” she adds.

'Alternative work arrangements'

Employers and labor advocates have been butting heads over worker misclassification for decades. In some ways, the debate parallels the history of the taxi industry, which saw labor activists secure strong protections for drivers via collective bargaining in the early and post-New Deal 20th century. Those protections began to erode in the 1960s and ’70s, as policymakers pulled back from labor bargains and union power declined. Cab companies started to reclassify drivers as independent contractors, setting off, in the ’80s and ’90s, a push to regain employment status from non-union worker groups.

Ride-sharing firms – the taxis of the new economy – inherited that history and added to it: Today they’re the most visible players in litigation over whether workers are contractors or employees.

But “alternative work arrangements” – in which employers hire independent contractors, on-demand workers, or temps instead of full-time employees – are a growing element of the entire US labor market. From 2005 to 2015, the number of people in traditional employee positions dropped by 400,000, while those in nonstandard arrangements rose by more than 9 million. “A perhaps more striking way to put it is that during those 10 years, all net job growth in the American economy has been in contingent jobs,” Politico’s Danny Vinik wrote in January.

The Dynamex ruling pushes back against that trend, employment lawyers say. The decision carries extra weight because it was made by the highest court in California – a state with a workforce of 19 million that prides itself on directing the flow of progressive policy. “I wouldn’t be surprised if other state courts picked up this ruling and looked at it carefully if similar issues were presented to them,” says Matthew Ginsburg, associate general counsel at the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the nation’s largest federation of unions.

Small businesses hit hard?

Employer defense lawyers counter that the ruling is especially bad for small businesses. Hiring independent contractors, they say, has allowed employers to avoid high up-front costs and the slew of requirements – such as paid family leave and health care – that California in particular requires of companies with five or more employees. Small business owners are far less equipped than the Ubers and Lyfts of the world to handle class-action suits or the penalties associated with even minor violations against employees.

“Every time there’s a violation, you get more claims and more money changing hands,” says Benjamin Hill, a lawyer with Inhouse Co., an employer defense firm with offices in Silicon Valley and Orange County. “That can be death for a small business.”

It’s the kind of thing that drives businesses out of the state toward places with friendlier regulatory regimes, adds John Fagerholm, whose Los Angeles-based firm, METAL Law Group, also handles cases against employers and entrepreneurs. And when that happens, he and others say, those hit hardest are the people who have to rely on independent contract work to make ends meet – single moms who need flexible hours or, say, folks with criminal records looking for a second chance.

“I don’t think it’s going to benefit employees,” Mr. Fagerholm says. “More people might get money off lawsuits but it’s not going to help the average employee. It’ll now be tougher to find work.”

Labor advocates say labor laws exist for a reason and that they should apply to all businesses. Startups and small entrepreneurs – known for their innovation – shouldn’t have a problem coming up with models that both profit their companies and comply with worker protection laws. The Dynamex decision, they say, is an opportunity for those businesses – as well as the public – to reassess how they want to treat the people who provide services in a rapidly changing world.

“It opens up opportunities to think again about … how do we want to shape the future of work?” says Saba Waheed, research director of the University of California, Los Angeles Labor Center.

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2. The newest fulcrum in Syria’s multidimensional war

Russia has been serving as a buffer between Israel and Iran amid the fighting in Syria, and we recently looked at what Moscow was doing to alleviate Israel’s concerns. But Israel’s restraint appears to be fraying – making the state of relations between Iran and Russia critical to managing any outbreak of fighting.

Pavel Golovkin/AP
Russian Foreign Minister Sergey Lavrov (c. right), Turkish Foreign Minister Mevlut Cavusoglu (c.), and Iranian Foreign Minister Mohammad Javad Zarif (l.) meet in Moscow April 28. Iran’s heated rivalry with Israel is complicating relations between Moscow and Tehran, and becoming, says the editor of a leading Moscow foreign policy journal, 'one of the most complicated problems Russian diplomacy faces today.'

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By Russia’s standards, its delicate balancing act in Syria’s civil war has been going well. Despite Iran’s increasing presence in Syria, unnerving Tehran’s avowed enemy Israel, Russia has maintained good relations with both. But an overt shooting war between Israel and Iran – Moscow’s worst nightmare – looks increasingly possible as tensions between Israel and Iran mount. And that could test the Kremlin’s ties with Tehran. Despite the way things may appear to many in the West, “Iran has always been a difficult partner for Russia,” says Vladimir Sotnikov, an independent Middle East expert. The Soviet Union supplied arms to Iraq during the Iran-Iraq War of the 1980s, and at Western urging, Russia dragged its feet on arms sales and nuclear power deals with Iran until recent years. But relations have improved as Iran and Russia have become allies in Syria’s civil war. “Their goals don't completely coincide,” says Fyodor Lukyanov, editor of Russia in Global Affairs. “Iran’s agenda is regional; it’s about Israel and Saudi Arabia. Russia’s agenda is global, to strengthen Russia’s position on the world stage. But they are complementary.”

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The newest fulcrum in Syria’s multidimensional war

As Israel and Iran increasingly square off against each other amid Syria's multi-dimensional war, it is Russia that finds itself between the proverbial rock and a hard place.

Russia has managed to maintain good relations with both Iran and Israel, even as the former has increased its presence in Syria in defense of the Assad regime, raising the latter's hackles.

But tensions between the two avowed enemies are rising. Israel has reportedly struck twice at Iranian military assets in Syria in the past few weeks. And on Monday Israeli Prime Minister Benjamin Netanyahu appeared to publicly pressure President Trump to pull out of the internationally supported Iran nuclear deal. Now, worries are growing that open fighting may break out between Iran and Israel – putting Russia's relations with both, particularly pro-Assad ally Iran, to the test.

An overt shooting war between Israel and Iran, even if it's confined to Syrian territory, would be Moscow's worst nightmare. But if Kremlin mediation can keep the two sides apart, while finding a formula to limit Iran's long-term influence in Syria, then Russia stands to cement its image as the premier Middle East deal broker.

“The standoff between Israel and Iran is one of the most complicated problems Russian diplomacy faces today,” says Fyodor Lukyanov, editor of Russia in Global Affairs, a leading Moscow foreign policy journal. “Russia's relationship with Iran is made necessary by their cooperation in Syria. They need each other. But there is also good understanding with Israel. Until recently, Russia managed to keep some balance between those two, but now it's becoming impossible.”

Jose Luis Magana/AP
Israeli Prime Minister Benjamin Netanyahu speaks at the 2018 American Israel Public Affairs Committee (AIPAC) policy conference in Washington on March 6. Mr. Netanyahu says Iran is responsible for 'darkness descending' on the Middle East by building an anti-Israel empire.

Underlying the present crisis is a fear of growing Iranian regional power on the part of Israel, Saudi Arabia, and the US. Since leaving the US orbit after its 1979 Islamic Revolution, Shiite Iran has survived a massively destructive war with Saddam Hussein's Iraq and endured decades of isolation and sanctions from the West. Its foes now see it expanding its influence across the entire northern tier of the Middle East all the way to the Mediterranean, including Shiite majority Iraq, Alawite-run Syria, and the Shiite Lebanese militant movement Hezbollah.

“The roots of the conflict are much deeper than issues over the Iran nuclear deal,” says Vladimir Sotnikov, an independent Middle East expert. “Iran views itself as an ancient civilization, the inheritor of the Persian Empire that once dominated the entire region. The present enmity between Iran and the Arab states of the Gulf, Saudi Arabia in the first place, is just the latest incarnation of a very old feud. Iran sees Israel as just a proxy for the US.”

“For its part, Israel fears that Iran wants to become the regional hegemon, and any force that might block Israeli goals is something it will not tolerate,” Mr. Sotnikov adds. “All this animosity is now unfolding on the Syrian battlefield, with Russia caught in between.”

A difficult partner for Russia

Despite the way things may appear to many in the West, “Iran has always been a difficult partner for Russia,” says Sotnikov.

The Soviet Union was Saddam Hussein's chief armorer during the Iran-Iraq war of the 1980s, and tilted its diplomatic support strongly in Iraq's favor. Although the USSR also supplied weapons to Iran, the post-Soviet Russian Prime Minister Viktor Chernomyrdin signed a secret agreement with the US in 1995 to halt all conventional arms sales to the Islamic Republic, though it reportedly failed to completely honor its terms.

In 2010, Russia voted in the UN Security Council to back comprehensive sanctions against Iran over its suspected nuclear weapons program. Even after returning to the Kremlin in 2012 amid worsening relations with the West, Vladimir Putin repeatedly bowed to US and Israeli requests not to fulfill an earlier contract to supply advanced S-300 missiles to Iran, although it has since done so. Moscow also delayed completion of Iran's Bushehr civilian nuclear power plant in response to Western entreaties, before completing the project and offering to build more atomic power stations for Iran after relations with the US began to sour in 2014.

Trade between Russia and Iran appears to be increasing fast, but total turnover was just $2 billion last year, or considerably less than Russia's trade with Israel. A much ballyhooed plan to help Iran avoid Western sanctions by shipping oil to Russia in exchange for Russian goods appears to have barely gotten off the ground.

“The amount of oil Russia is buying from Iran is very small, and appears to be just a way for Iran to pay for Russian military goods in oil rather than cash,” says Mikhail Krutikhin, a partner at RusEnergy, a leading Moscow energy consultancy. “In general, Russia and Iran are both oil exporters and thus competitors. And Iranian law makes it not at all profitable for foreign companies to invest in upstream oil and gas infrastructure, so prospects there for Russian companies are few.”

But Iran is set to seal a free trade agreement with the Moscow-led Eurasian Economic Union next week. After nearly a decade of being on the waiting list, Iran also seems set to soon join the Russian-and-Chinese-led Shanghai Cooperation Organization, the only large regional grouping of states that neither the US nor any of its allies belongs to.

A balancing act

The dramatic change is that Russia intervened in Syria almost three years ago to bolster the regime of Bashar al-Assad, an old Moscow client. That has led to a strong battlefield alliance with Iran, which may carry much wider implications.

“Their goals don't completely coincide,” says Mr. Lukyanov. “Iran's agenda is regional, it's about Israel and Saudi Arabia. Russia's agenda is global, to strengthen Russia's position on the world stage. But they are complementary.”

The other main development is that US-Russia relations have virtually crashed and burned since Russia intervened in Syria. One effect of that may be that Russia will be less inclined to listen to US requests that it not provide advanced weaponry, nuclear engineering, and other critical technology to Iran than it has been in the past.

“Russia has always had one eye on improving its relations with the US, and saw any situation as an opportunity to enhance its hoped-for partnership with Washington,” says Lukyanov. “Now relations with the US are so bad that Moscow may have fewer inhibitions about moving closer to Iran. And if the nuclear deal falls through, and Iran comes under sanctions again, that will only strengthen its dependency on Russia.”

Russia also relies on Iran to help shape a political settlement for Syria in the so-called Astana Process, an alternative to the UN-backed Geneva Process for Syria that Russia, Turkey, and Iran initiated last year. Analysts say that Moscow intends to continue with the Astana track, even if the Geneva talks – which would include the US as a major player – are relaunched in the near future.

But Russian hopes for solving the long-running Syrian crisis on its terms will depend on keeping Iran and Israel apart in the coming weeks.

“Putin is a pragmatist, and he understands that Israel has a point when it complains about Iranian military presence near its borders,” says Lukyanov. “But he also cannot allow the achievements Russia has made in Syria to be destroyed. He needs to maintain the alliance with Iran, so he will also need to show Israel that there are certain limits that Israel should not exceed. Russia would never clash directly with Israel, but will probably enforce its will by strengthening Syrian air defenses in ways that restrain Israel's field of action.”

Moscow will try to be a buffer between the two, but that's easier said than done, says Sotnikov.

“Israel and Iran are archenemies, and they are squaring off. Israel appears to have Trump's full support, and is moving fast. For Russia, it's going to be like trying to sit on two chairs at once.”

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3. Dueling DACA cases look likely to set up Supreme Court showdown

Suing the federal government has become an increasingly popular tool for attorneys general of both parties. In the absence of immigration legislation from Congress, some states are suing to end Deferred Action for Childhood Arrivals, while others are suing to keep it. This piece examines where that forces the action to go next.

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Yet another showdown over the breadth of presidential power in immigration may be headed for the US Supreme Court. This week Texas and a half-dozen other Republican-controlled states sued to end an Obama-era immigration executive order. The move is likely to ramp up anxiety for the almost 700,000 US residents brought here illegally as children who have been deemed low priorities for deportation under the Deferred Action for Childhood Arrivals program former President Barack Obama created by executive order in 2012. The program has been in effect for six years, but the lawsuit filed by Texas Attorney General Ken Paxton on Tuesday represents the first direct challenge to the program’s lawfulness. The lawsuit asks for an order blocking the Trump administration from issuing or renewing any DACA permits. The move is reminiscent of efforts to overturn Mr. Obama’s executive actions on immigration. This time around, however, only six states have opted to join Texas in the lawsuit, compared with 25 that joined similar efforts in 2015. That at least partly reflects a shift in public support for DACA.

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Dueling DACA cases look likely to set up Supreme Court showdown

You could be forgiven for feeling a strange sense of déjà vu this week.

The fact that Texas and a half-dozen other Republican-controlled states sued this week to end an Obama-era immigration executive order feels very 2014. But while some of the legal arguments may be familiar, the timing of this particular lawsuit is likely to sow confusion in the courts and chaos in federal agencies. The stakes are highest for the almost 700,000 US residents brought here illegally as children who have been deemed low priorities for deportation under the Deferred Action for Childhood Arrivals (DACA) program former President Barack Obama created by executive order in 2012.

The end result is likely to be yet another showdown in the US Supreme Court over the breadth of presidential power in immigration, something Republicans criticized when Mr. Obama was in the White House and something that Democrats have criticized since Donald Trump replaced him.

“This is all about the president’s authority in immigration,” says Muzaffar Chishti, director of the Migration Policy Institute’s office at the New York University School of Law.

“Obama decided to invoke it in favor of the DACA people, and Trump decided to invoke it in favor of the travel ban,” he adds, referring to President Trump’s executive order restricting entry to the US for citizens of eight countries.

“It will be very interesting to see how this plays out,” continues Mr. Chishti. “There are political minefields here, not just legal ones.”

Familiar players

The DACA program has been in effect for six years, but the lawsuit filed by Texas Attorney General Ken Paxton on Tuesday represents the first direct challenge to the program’s lawfulness. The lawsuit asks for an order blocking the Trump administration from issuing or renewing any DACA permits.

In fact, the program has lots of public support, with one 2018 poll finding that 83 percent of Americans favor continuing the program, including 67 percent of Republicans. Mr. Trump has described DACA recipients as “good people … that should be able to stay in this country.” Texas Gov. Greg Abbott and Lt. Gov. Dan Patrick have remained notably silent about the suit.

This may partly explain why only six other states have joined Texas in the current lawsuit, compared with the 25 who joined when the state spearheaded litigation against Obama’s executive actions on immigration in 2015, says Denise Gilman, director of the Immigration Clinic at the University of Texas School of Law in Austin.

“The general consensus is we need to figure out a way to create a stable status for those who are currently benefiting from DACA,” she says.

In terms of the legal arguments, that 2015 lawsuit is the blueprint for the current one. Texas and its six co-plaintiffs – Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia – claim that Obama violated his constitutional duty as president to “take Care that the Laws be faithfully executed,” as well as violating the Administrative Procedure Act (APA). The suit has been filed in the same court, the Brownsville-based Southern District of Texas, as the 2015 case. It has been assigned to Judge Andrew Hanen, who also heard the 2015 case and sided with Texas.

Confusion and conflict

Mr. Paxton has been threatening this lawsuit since Trump entered the Oval Office. In June 2017, he gave the Trump administration three months to end DACA or he would sue. Three months later, US Attorney General Jeff Sessions announced that new applications would no longer be accepted and that permits valid for more than six months would not be renewable. If they didn’t take these steps, he said at the time, “the likeliest outcome is that [DACA] would be enjoined.”

But two federal district courts, one in Northern California and one in New York, have ruled that the Trump administration must allow current DACA recipients to apply for renewals again. And last week a federal judge in Washington, D.C., went even further, saying the administration “offered meager legal reasoning” for believing the program would be declared unlawful and saying it may have to accept new DACA applications as well.

What that means, Professor Gilman says, is that “we might end up with a situation where we have different federal courts in different parts of country issuing different injunctions at cross purposes with each other.”

If two courts say DACA must continue but another says no new applications can be processed, she adds, “what do federal officials who receive those applications do?”

Before district court rulings find themselves in conflict with each other, Mr. Sessions and the US Justice Department face their own conflict – seeking to terminate the DACA program while now being called on to defend it.

The Trump administration could say it will not defend the program against Texas because it believes DACA is unlawful, experts say. It is a strategy that would echo the Obama administration’s refusal to represent the federal government in lawsuits against the Defense of Marriage Act, a federal law that banned same-sex marriage.

The Mexican American Legal Defense and Educational Fund (MALDEF) has intervened to defend DACA recipients, recently representing them in Arizona when the state successfully argued that they’re not eligible for in-state college tuition.

“You can be sure that the top law firms of the country will be defending the executive order,” says Chishti. “If MALDEF decides to intervene they’ll be well legally-resourced to bring the best arguments.”

Shopping for injunctions

The best legal arguments may not be enough to convince Judge Hanen that DACA is lawful, experts say. The 2015 lawsuit didn’t address the original DACA program. Instead, it focused on the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which sought to give unauthorized parents with US-born children low-priority deportation status and to expand DACA.

In upholding an injunction blocking DAPA’s implementation, and the DACA expansion, nationwide, Hanen wrote that “even ‘unreviewable’ administrative actions may be subject to judicial review under exceptional circumstances” and that the Obama administration “clearly legislated a substantive rule without complying with” the APA.

The US Court of Appeals for the Fifth Circuit later upheld the injunction, and when the Obama administration appealed that ruling to the Supreme Court – reduced at the time to eight justices – the court split 4-to-4, upholding the Fifth Circuit’s decision and setting no new precedent.

“What they’re trying to do is follow the same arguments and the exact same strategy” this time as in 2015, says Steven Schwinn, an associate professor at the John Marshall Law School in Chicago.

“That’s a strategic choice on the part of the plaintiffs,” he adds. “I think they’re likely to get quite a welcome reception from that judge.”

That strategic choice has been a common one in recent years. Obama’s presidency saw attorneys general in Republican states fight his executive actions tooth and nail in the courts, often successfully. Since Trump replaced him attorneys general in Democratic states have done exactly the same thing, most notably in securing several nationwide injunctions from district courts in liberal jurisdictions to block the travel ban.

“The lawsuits in the Obama administration ramped up the strategy substantially,” says Professor Schwinn. “Lower courts are now routinely issuing nationwide injunctions.”

“People on both sides of the political aisle are seeing this as a powerful tool to stop the president from implementing policy that they see as either illegal or unfavorable to their position,” he adds.

The combination of this trend and the broad powers given to the president on immigration matters has seen the Supreme Court weigh in on the appropriate breadth of those powers several times in recent years. Just last week the justices seemed reluctant to rule that Trump doesn’t have the authority to implement the travel ban.

With conflicting lower court opinions on DACA’s lawfulness now appearing likely, the high court will soon be asked to review that question. At that stage, the court’s tie vote on DAPA in 2016 will loom large, and all eyes will be on the one new arrival: Justice Neil Gorsuch. He has been a reliable conservative vote since joining the court last June, only to surprise court-watchers last month in voting with his four more liberal colleagues in a case that now makes it more difficult for the Trump administration to deport some unauthorized immigrants.

“What Justice Gorsuch does will be very critical,” if a DACA case reaches the high court, says Chishti, “and frankly we have no idea where he will go on this issue.”

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4. These ‘accidental Americans’ seek help when Uncle Sam comes calling

Stories about US citizenship tend to be about people – like the "Dreamers" in our previous piece – who are trying to find a way to get it. This piece looks at some of those in a different situation: They live abroad, with US citizenship. But now they find that they’re unsure about maintaining it.

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For many abroad, US citizenship is a highly desirable prize. But some are finding it a costly burden – one they might not have even been aware they had. It all stems from recent legal changes in the United States meant to root out secret accounts abroad. The law now requires foreign banks to report the identity and assets of any US citizens to the IRS. Several governments have signed agreements to enforce it. And that has led to nasty surprises for “accidental Americans” like Marilyn Wiles-Mooij, a European born in the state of Georgia. Ms. Wiles-Mooij thought she had renounced her US citizenship two decades ago. But in 2014, her French bank informed her that if she did not supply a Social Security number, her accounts would be seized over her failure to comply with US tax requirements. She doesn’t have an SSN. “We’re being refused bank accounts and health insurance; we’re being asked to pay huge amounts of money,” says Fabien Lehagre, president of the Accidental Americans Association advocacy group. “It’s unforgivable. We’ve never lived or worked in the US.”

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These ‘accidental Americans’ seek help when Uncle Sam comes calling

Tom Wallis was born in France to a French mother and American father. But his father passed away when he was just six years old. Apart from one year he spent working in the United States, Wallis has spent little time tending to his American roots – he thinks of himself as French.

But four years ago, his sister tried to apply for a loan. Her French bank asked her to declare whether she was American, and knowing her father's lineage, she replied yes. That's when she, and her siblings discovered they owed the American government tens of thousands of dollars in taxes – with Mr. Wallis alone on the hook for more than $100,000.

“We had to tell the French banks that we were American and we had to declare our revenue, property, and companies to the US,” says Wallis, from his home near Grenoble. “This is when we all started to see that being American was an issue.”

Wallis is one of thousands of “accidental Americans” living around the world – people who hold US citizenship due to an American parent or having been born in the states, while retaining little or no attachment to the US. Thanks to a combination of US legal changes and intergovernmental agreements in recent years meant to root out hidden bank accounts abroad, these accidental Americans are coming into the crosshairs of the IRS. Those without Social Security numbers are at risk of losing their accounts, while others are notified for the first time that they need to – and should have been for years – start declaring US taxes.

The problem is bad enough that groups like the Accidental Americans Association (AAA) in France are organizing to fight Foreign Account Tax Compliance Act (FATCA), the key US legislation behind the issue, and relieve some of the burdens for people like them. They’re pleading their case before the French Senate and the European parliament in the coming days and months, and pushed to get the issue addressed during the recent meeting between President Trump and French President Emmanuel Macron.

“These are people who have done nothing wrong to see their lives overturned,” says John Fredenberger, an American tax attorney based in Paris since 1971. “They can either declare [their taxes], pay [the US], or renounce their citizenship. Basically, those are the options.”

‘We’re the ones paying’

FATCA was signed into law in 2010 to fight foreign tax havens and secret accounts abroad, by requiring foreign banks to report the identities and financial assets of any client with US status to the IRS. FATCA gained even more strength when the US began signing FATCA intergovernmental agreements (IGAs) with foreign countries requiring the reciprocal exchange of banking information.

When France approved an IGA with the US in 2014, people like Marilyn Wiles-Mooij found themselves collateral damage.

“I only realized four years ago that I was American when I received a letter from my bank threatening to close my accounts if I didn’t give them my Social Security number,” says Ms. Wiles-Mooij.

But Wiles-Mooij didn’t have a Social Security number. Born in Georgia 67 years ago to a French mother and British father, Marilyn Wiles-Mooij thought she had given up her US citizenship two decades ago after signing documents to stop renewing her passport. But in 2014, when the banks came calling, she realized her citizenship was intact and she was at risk of losing her accounts.

Holding onto their bank accounts in the only country they’ve ever known is only half of the problem for accidental Americans. Many are shocked to find they owe thousands of dollars in unpaid taxes for the years they should have been filing. Wallis says he spent 50,000 euros ($59,700) in lawyers fees, only to be told that he owed $115,000 to the IRS.

“I know in the beginning, this law wasn’t against normal people like us, but in the end, we’re the ones paying,” says Wallis, who has yet to pay his taxes.

Americans abroad do have options. They can commit to a “fresh start” program if they agree to declare and pay any outstanding taxes in the last three years as well as outline in good faith why they hadn’t prior. If and when their records are clean, they’re free to renounce their citizenship – assuming they’re willing to pay for it, at $2,350 each.

But Mr. Fredenberger, the tax attorney, says this doesn’t get to the heart of the issue. While IGAs require US banks and foreign banks to offer information on their clients to the other government, the US side is not holding up its end of the deal.

“If you look at the American Banking Association, no one is taking the lead to reciprocate and tell American banks to look at their client records,” says Fredenberger. “They’re not doing it and I don’t think they ever will.”

Fredenberger says that even the language in the agreement is unsubstantial and vague. He argues that because the US hasn’t held up its end of the agreement, it should be canceled.

In addition, financial experts estimate that the gains seen by the IRS in instituting FATCA have been far less than the headaches it produces. While FATCA was passed on the assertion that it would regain the some $100 billion in tax revenue lost to offshore tax abuses, experts say that the amount of tax that it has collected has been statistically insignificant.

Raising awareness

Fabien Lehagre, president of the AAA and an accidental American himself, is working with a French lawyer to show that the decree used to enforce FATCA is unconstitutional under French law. In October, they presented their case to France’s administrative Supreme Court, claiming that the French constitution requires such agreements to be reciprocal, and that FATCA violates European laws on personal data protection.

On May 15, a bipartisan committee will present a proposition to relieve some of the burdens for accidental Americans at the French Senate, with hopes it can then move onto the National Assembly for debate. And this summer, the European parliament will address the issue during a plenary debate.

“Our main goal is to raise awareness, but we do have specific demands,” says Mr. Lehagre. “We’re being refused bank accounts and health insurance, we’re being asked to pay huge amounts of money. It’s unforgivable. We’ve never lived or worked in the US.”

The AAA is also hoping their work will inspire other accidental Americans to join forces. While those in the Netherlands have been organizing, the French are thus far the only ones to raise the issue publicly. But the only real, lasting solution for accidental Americans would be the repeal of FATCA itself – and that seems unlikely.

“I was really shocked when FATCA was enacted. It’s offensive and the US tax authority has no basic jurisdiction over these people,” says Thomas Brever, a tax attorney in Minnesota and former trial attorney with the IRS. “But I think the IRS would laugh [that the French are trying to end FATCA] because I don’t think the chance of success is very high. I don’t think they’re going to get anywhere.”

Wallis says that in the meantime, the longer he waits to pay his outstanding taxes, the worse things will get for him. But, he says, it’s out of the question that he’ll cave to US demands.

“Maybe one day the US government will tell me I have to pay…. My lawyers told me I could go to jail,” says Wallis, “but I’m never going to pay that amount. I’ll go on a hunger strike before I do.”

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5. Marx at 200: Weighing the legacy of capitalism’s top critic

This last piece cuts loose on the global diffusion of an economic theory. Writing down an idea is like throwing a message in a bottle into the sea: Once it leaves your hands, you can’t predict or control how far it will travel, or whose hands will take up the message.

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Saturday marks the 200th birthday of one of history’s most divisive and influential thinkers, Karl Marx. One might think that, nearly three decades after the end of Soviet-style communism and the untold human suffering that accompanied it, Marxism would be about as relevant to today’s politics as astrology. But instead, the German political economist’s ideas are enjoying something of a resurgence. One reason for this might be the Great Recession, which gave lie to the notion that markets are inherently self-regulating. “The crash opened up, in the very upset of conventional ways of thinking, a willingness to re-examine old issues that had never been resolved,” says Richard Wolff, a visiting professor at the New School in New York City and one of the few Marxian economists in American academia. “Marx was the first great critic of capitalism," he says. “And nothing has for certain guaranteed the presence and future of Marxism than the existence of capitalism, of which it is, you might say, the critical shadow.”

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Marx at 200: Weighing the legacy of capitalism’s top critic

It’s one of history’s great ironies that the most influential writer of the 20th century lived his entire life in the 19th. But if there was anyone who could appreciate a good historical contradiction, it was Karl Marx.

Saturday marks the 200th birthday of Marx, whose ideas defined the political and economic landscape of the previous century. The day affords the opportunity to ask to what extent, if any, those ideas are relevant today.

Marxism has always been polarizing, but perhaps the political anomie of 2018 leaves the debate over its relevance less ideologically encumbered than previous milestones. Soviet-style communism has settled into the ash heap of history, and yet, for many, capitalism’s victory has been less than decisive, particularly following the economic crash of 2007, an event that has driven a small but growing number of citizens in advanced industrial nations to question the very foundations of our economic system.

“Marx was the first great critic of capitalism,” says Richard Wolff, a visiting professor at the New School in New York and one of the few Marxian economists in American academia. “And nothing has for certain guaranteed the presence and future of Marxism than the existence of capitalism, of which it is, you might say, the critical shadow.”

Matthias Rietschel/Reuters
Left-wing activists rest at the feet of the Karl Marx monument after a protest against the demonstration of German far-right groups in Chemnitz, Germany, on May Day 2018.

A central thesis of Marxism is that capitalism has given rise to two hostile classes: the workers, who in order to survive must exchange their labor for wages; and the bourgeoisie, who own the businesses that pay the workers. The bourgeoisie generate profit by paying their workers less than the entire value of the goods that they produce, keeping the rest for themselves.

This extraction of “surplus value” from workers, say Marxists, produces a fundamental contradiction. Employers must maximize profits by keeping wages as low as possible, but they must also continue to sell products, which becomes increasingly difficult as workers’ buying power is limited by low wages. From a employer’s revenue standpoint, the ideal would be to have poorly paid workers and highly paid customers, but that ideal becomes unattainable when pursued by everyone. The system, according to Marxist theory, inevitably feeds upon itself.

“Capital is chasing all over the globe for the cheapest possible labor that it can find, working it as long and as hard and as cheaply as it can,” says Wendy Brown, a political theorist at University of California, Berkeley. “Marx could have explained that to you 200 years ago.”

Born on May 5, 1818, to a well-to-do Jewish family that converted to Lutheranism in the Rhineland town of Trier, a Roman Catholic town reclaimed by Prussia from France four years earlier, Marx arrived in the world amid a tumult of conflicting ideas about who ought to hold power and why. His early journalism, which he took up after completing a doctorate in philosophy at the University of Berlin and failing to secure a professorship, shows the glimmer of an academic discipline that would one day count Marx among its founding fathers: social science.

In 1843, writing for radical newspaper the Rheinische Zeitung about the economic plight of wine growers in his native Moselle Valley, Marx called for an “objective standpoint” that would analyze society and its relations “with approximately the same certainty with which the chemist determines the external conditions under which substances having affinity are bound to form a compound.”

He quickly discovered that attempting to wield the scientific method against Prussian state power is a surefire way to be kicked out of the country. Marx and his wife, a beautiful and rebellious aristocrat named Jenny von Westphalen, chose Paris, which at the time was teeming with activists from across the political spectrum: monarchists, anarchists, and a group who envisioned a society in which property was commonly owned.

“Like Ho Chi Minh, Zhou Enlai, and Pol Pot, it was only in Paris that Marx became a communist,” says Jonathan Sperber, a University of Missouri historian and author of the 2013 biography, “Karl Marx: A Nineteenth-Century Life.”

Francois Mori/AP
Activists holding flares march behind a banner depicting former German philosopher and and revolutionary socialist Karl Marx during the traditional May Day rally in the center of Paris, France.

Prussian authorities pressured France to exile Marx from the country in 1845. He eventually wound up in London in 1849, where he spent the rest of his life.

Marx died in 1883 without witnessing a proletarian revolution. But in 1917, revolutionaries inspired by his words toppled Russia’s government and established history’s first workers’ state. Within 50 years, more than a third of humanity would come to live under an officially Marxist government.

“The regimes that used his name,” says Professor Sperber, “don’t have a whole lot to do with Marx’s ideas. They were very centralized and bureaucratic. And Marx deeply, deeply hated bureaucrats.”

But even if Marxist regimes failed to implement his ideas, those ideas nonetheless spread. “Marxism in one form or another has penetrated into the history and culture of every country in the face of the Earth,” says Professor Wolff. “It has intermingled with every language, culture, level of historical development, and set of economic conditions and circumstances.”

Seven decades after those first shots were fired in Petrograd, the Bolsheviks’ grand and bloody experiment came to an abrupt halt with economic collapse and dissolution. To many observers, communism’s collapse in 1989 signaled the end of Marxism’s relevance.

But something unexpected happened along the way to what should have been capitalism’s triumph. In late 2007, the global economy imploded in a spectacularly Marxian fashion, leaving the banks themselves suddenly beggared and in need of a public bailout. The central myth of neoliberal capitalism, that market economies are inherently self-regulating, had been punctured, observers say.

“The crash opened up, in the very upset of conventional ways of thinking, a willingness to re-examine old issues that had never been resolved,” says Wolff.

Following the crash, booksellers around Germany reported that sales of Marx’s seminal work, “Capital,” rose 300 percent. Marxism, it seems, is making something of a comeback.

“I’ve done more invited public speaking since 2009 than in the previous 40 years,” says Wolff, who advocates for democratically run worker cooperatives that could exist alongside capitalist enterprises. “The audiences range from 200 to 500 people, and the interest is electric.”

But this popularity might have more to do with a discontent with capitalism than with an embrace of Marxism. “Often if you look at when people say, what is it about Marx that’s relevant to today, all they can do is give you phrases,” says Sperber. “They can say things like, ‘crisis,’ ‘globalization,’ ‘inequality,’ and they’re just literally almost just like slogans and words.”

To Professor Brown, the question of Marxism’s contemporary relevance has two answers: yes and no.

“He has tremendous relevance for our time. And I think there are limitations that have to do with his 19th-century context,” she says, noting that Marx never predicted the central role financial institutions would play in industrial economies.

Yet the critical tradition that Marx spawned, which extends across the humanities and social sciences, makes it impossible to contain Marxism entirely in a 19th-century context.

“Marx in certain ways became so much part of the air we breathe and the water we swim in, even where he was repudiated,” says Brown.

“[Marxism] is everywhere,” says Wolff. “And it’s not going away.”

Dinuka Liyanawatte/Reuters
A man looks from an inside a vehicle on an image of Karl Marx during a May Day rally organized by Front Line Socialist Party in Colombo, Sri Lanka, on May Day.
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The Monitor's View

Using Marx’s birthday to recall progress toward peace

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The trend is clear: Humanity has steadily sloughed off ideas that justify violence, even when an idea promises a noble end. One of the grandest victories over a justification of violence was the demise of a theory put forth by Karl Marx, whose 200th birthday on May 5 is being widely noted. He called for “the forcible overthrow of all existing social conditions.” Many of his followers, impatient to see a Marxist utopia in their lifetime, ended up using force well into the 20th century. It resulted in the deaths of as many as 100 million people from North Korea to Venezuela. Only when the Soviet Union collapsed in 1991 and China’s Communists embraced a market economy did much of the world decide that the Marxist maxims on violence should go on the ash heap of history. Marxists tend to see others as dupes of a perverse system, thus justifying violence perpetrated by those who presume they are in the vanguard. In a democracy, however, humility and respect toward others must triumph over such arrogance. Free societies see the work of progress and enlightenment coming through individuals, not imposed on them by force. If observing the anniversary of Marx’s birth should serve any purpose, it should be to remind us that humanity keeps opting freely for peace by consensus, not coercion.

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Using Marx’s birthday to recall progress toward peace

Seven years ago, Harvard University scholar Steven Pinker wrote a book that concluded, through analysis of historical data, that “the world is less violent now than at any time in history.” In 2018 peace is still not yet a universal norm. But the trend is clear: Humanity has steadily sloughed off ideas that justify violence, even when an idea promises a noble end.

In 1928, for example, the great powers agreed to outlaw war as a new principle of international law. Before then, attacking another country was simply accepted as a right. A string of treaties in the 20th century reduced the advance of certain weapons, such as toxins. The world has also seen the rise of conflict mediators. And within countries, tolerance of private violence, such as husbands beating wives or the abortion of female fetuses in favor of boys, has been shamed or banned. The #MeToo and Black Lives Matter movements are the latest examples of this historical trend.

One of the grandest victories over a justification of violence was the demise of a theory put forth by Karl Marx, whose 200th birthday on May 5 is being widely noted. He wrote that his proposal of a new economic system called communism could be achieved only by “despotic” means. He called for “the forcible overthrow of all existing social conditions.”

Many of his followers, impatient to see a Marxist utopia in their lifetime, ended up using force well into the 20th century. It resulted in the deaths of as many as 100 million people from North Korea to Venezuela. Only when the Soviet Union collapsed in 1991 and China’s Communists embraced a market economy did much of the world decide that the Marxist maxims on violence should go on the ash heap of history.

Marx’s basic mistake was to put faith in human systems, especially the coercive collectivization of an economy. This use of force came at the expense of universal principles that promote peace, such as the dignity of each individual and the equality of all before democratic law. Marxists tend to see others as dupes of a perverse system, thus justifying violence perpetrated by those who presume they are the advanced guard.

In a democracy, however, humility and respect toward others must triumph over such arrogance. Free societies see the work of progress and enlightenment coming through individuals, not imposed on them by force.

Marx did contribute to the long debate over the origins of prosperity. Does economic progress come through physical labor and state control of credit, as he contended? Or does it lie in the constant discovery of ideas by free individuals who are also willing to put money behind new ideas (“capitalism”) and employ others eager for a job? Such debate over economic theory still infuses academia and politics. Are Uber drivers, for example, employees or entrepreneurs?

Marx’s theories came as a unified package, promoting both force by authoritarian leaders and a system of governance. They were not to be separated. If observing the anniversary of his birth should serve any purpose, it should be to remind us that humanity keeps opting freely for peace by consensus, not coercion.

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A Christian Science Perspective

About this feature

Each weekday, the Monitor includes one clearly labeled religious article offering spiritual insight on contemporary issues, including the news. The publication – in its various forms – is produced for anyone who cares about the progress of the human endeavor around the world and seeks news reported with compassion, intelligence, and an essentially constructive lens. For many, that caring has religious roots. For many, it does not. The Monitor has always embraced both audiences. The Monitor is owned by a church – The First Church of Christ, Scientist, in Boston – whose founder was concerned with both the state of the world and the quality of available news.

Healed of chronic back pain

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Today’s contributor found that leaning on God for strength to help a family member after a snowstorm led to freedom from a long-standing back problem.

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Healed of chronic back pain

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One day, my dad called me after a snowstorm to tell me that several trees had come down with the heavy snow. Some of them were lying on the roof of his garage, while others were across the access road to his home, preventing him from getting out or getting help.

At the time I had for several years been having great difficulty with my back. I was unable to straighten up when I walked or do any heavy lifting without pain. But I knew my dad needed help, so I told him that I would come and do whatever I could.

I remembered an article I’d come across just a few months before about a man who, despite being seriously ill, selflessly undertook to help others. In doing so, he himself found healing. To me, his whole experience seemed to point to the healing power of unselfed love. Monitor founder Mary Baker Eddy speaks to this in her textbook on Christian healing, “Science and Health with Key to the Scriptures,” when she says: “Whatever holds human thought in line with unselfed love, receives directly the divine power” (p. 192).

I thought of unselfed love as a total giving of oneself with no thought of reward or consequence. It was a gift that I wanted to give to my dad. I wasn’t sure what I was going to do to help or how I would do it, but I trusted a promise of Christ Jesus that I’d come to love: that “with God all things are possible” (Matthew 19:26).

The five-hour drive to my dad’s place was difficult with my back, and I arrived very stiff and sore. That night, as I lay in bed, I thought of all the work awaiting us the next morning. I wholeheartedly prayed to know that God was my source of strength and that I could do all things through Him.

When I awoke the next morning, I bounced out of bed. I couldn’t remember the last time I’d felt so energetic, and there was absolutely no pain. I felt strong and ready to do whatever Dad needed me to do. I got dressed and informed him I was ready.

We cut trees and hauled limbs to the burn piles for two to three days, and then continued to burn for another day to clean up. Only once did I have some discomfort, and even then I understood that as Christian Science teaches, this wasn’t how God had made me. I was not created to suffer. My silent prayer immediately affirmed the supremacy of God, who is entirely good and the only true power, and I found I was able to continue the work once again pain-free.

At the end of each day Dad would just look at me. He knew how bad my back had been all those years, and he had real difficulty reconciling the work I was doing with my past condition. I kept reassuring him that I had no pain, and I finished the work with complete freedom of movement.

In the years since, Dad and I have had many discussions about my back healing, which has been permanent. He insists that it was a miracle, but I’ve come to realize that it was a natural result of seeing more clearly how God created us spiritually, with spiritual qualities that cannot be lost. God didn’t create us materially, with a limited warranty. God is infinite Love, who cares for us. That love in turn helps us care for others.

The idea of the healing power of unselfed love continues to speak to me. Before this experience, whenever I walked or stood, I leaned to one side with what appeared to be poor posture. I have stood straight and without pain ever since the healing. I am convinced that this healing through prayer alone is evidence of the always accessible healing power of Christ. I learned more of the innate harmony and freedom that we are all able to express as children of God, who loves us all.

Adapted from a testimony in the April 13, 2015, issue of the Christian Science Sentinel.

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Viewfinder

Bridge from the age of steam

Russell Cheyne/Reuters
The Jacobite steam train crosses the Glenfinnan Viaduct – familiar to 'Harry Potter' fans – in Scotland May 4. Service along a scenic 84-mile round trip out of the port town of Mallaig runs from April until late October.
( The illustrations in today's Monitor Daily are by Karen Norris and Jacob Turcotte. )
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In Our Next Issue

( May 7th, 2018 )

Clayton Collins
Director, editorial innovation

Have a great weekend, and come back Monday. As NASA sets up for its next mission to Mars, we’ll look at some surprising ways the Red Planet has become important in understanding our own. 

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