Hot Topics in Business Law

Sep 30, 2020 |

Article 1: “Fox Will Pay Gretchen Carlson $20 Million to Settle Sexual Harassment Suit”

https://abcnews.go.com/Politics/wireStory/feds-release-nationwide-sex-offender-registry-regulation-72418254?cid=clicksource_4380645_1_heads_hero_live_headlines_hed

According to the article, the United States Justice Department announced a new regulation recently spelling out detailed nationwide requirements for sex offender registration under a law the U.S. Congress passed in 2006.

The regulation, which stems from the federal Sex Offender Registration and Notification Act, requires convicted sex offenders to register in the states in which they live, work or attend school. It details specific information that registered sex offenders across the U.S. must provide to officials.

While the law required that sex offenders provide personal information, the regulation codifies precisely what information must be provided, including name, birth date, Social Security number and specific information about travel, vehicles and professional licenses. The regulation also sets out the time required to remain on a sex offender registry, ranging from 15 years to life, depending on the offense.

Under the law, sex offenders must report any address changes and would be required to report any overseas travel. That requirement, officials say, helps law enforcement address concerns about global sex trafficking.

In passing the law, Congress left it up to the attorney general to decide how to apply the law’s requirements to those convicted of a sex offense before the law was enacted in 2006.

The Supreme Court ruled in 2019 that Congress did not do anything improper when it gave the attorney general the ability to decide how to apply a sex offender registry law to more than 500,000 people convicted before the law was enacted.

The Justice Department says the regulation will help the federal government keep up to date with its national sex offender registration system.

Assistant Attorney General Beth Williams said the regulation helps further a goal by the Justice Department and Congress “of ensuring that convicted sex offenders are accounted for under the law.”

“These regulations will enhance the enforcement of registration and notification across the country and ensure that information about sex offenders in the community is available to law enforcement and the public,” Williams said in a statement. 

Discussion Questions

1. In your reasoned opinion, should a sex offender registry be maintained and monitored on a state level, on a federal level, or some combination of the two regulatory authorities? Explain your response)

This is an opinion, so student responses may vary. Currently, the system is managed collaboratively, with both state and federal authorities working together to maintain and monitor the registry. With the latest development addressed in the article, the federal government is taking an even more active regulatory role regarding the registry.

2. The article references the timeline a convicted offender is to remain on the sex offender registry, ranging from fifteen (15) years to life depending on the nature of the offense. In your reasoned opinion, is this timeline reasonable and appropriate? Explain your response.

This is an opinion question, so student responses may vary. Responses to this question will likely depend on what the student views as the primary objective of criminal law: 1) to punish the offender; or 2) to rehabilitate the offender.

3. As noted in the article, in passing the Sex Offender Registration and Notification Act, the United States Congress left it up to the attorney general to decide how to apply the law’s requirements to those convicted of a sex offense before the law was enacted in 2006, and the U.S. Supreme Court ruled in 2019 that Congress did not do anything improper when it gave the attorney general the ability to decide how to apply a sex offender registry law to more than 500,000 people convicted before the law was enacted. Research and define what an ex post facto law is. In applying the law’s requirements to those convicted of a sex offense before the law was enacted, is the law not, in effect, ex post facto and therefore unconstitutional? Explain your response.

According to Article I, Section 9, Clause 3 of the United States Constitution, “No…ex post facto Law shall be passed.” “Ex post facto” means “after the fact,” and the term “ex post facto law” refers to a law that would criminalize (for the specific purpose of punishing the actual offender) an act that was legal when it was committed, or that would serve to increase the punishment (again, for the specific offender) for the commission of a criminal act that was already committed. The foundation for the constitutional prohibition against ex post facto laws is essential fairness; i.e., it is not fair to punish an offender for an act that was legal when it was committed, nor is it fair to increase the punishment for an offense above and beyond the punishment that was in effect when the act was committed.

Article 2: “The USPS and the Constitution”

https://www.downsizinggovernment.org/usps-and-constitution

According to the article, in a Washington Post report on the United States Postal Service’s (USPS’s) continuing problems, Ed O’Keefe calls the USPS “a quasi-government agency enshrined in the U.S. Constitution but required by law to act like a business.”

But there is no “quasi” about it: the USPS is a government agency. It may be different than the standard government agency because it operates like a business, but it’s Uncle Sam’s business.
O’Keefe says that the USPS is “enshrined in the Constitution.” It’s true that Article 1, Section 8 says:

[The Congress shall have the power] to establish Post Offices and Post Roads.

Thus, the Constitution allows the government to get involved in postal services, but that doesn’t mean that it has to. If a better alternative came along, then Congress could kill the USPS completely if it wanted. Indeed, a better alternative has come along in the way of more efficient privatized post offices in some European countries.

In addition, the government monopoly over mail was not enshrined in the Constitution. In a 1996 Cato book, “The Last Monopoly,” James I. Campbell writes the following in a chapter on the history of postal monopoly law:

The U.S. Constitution, in 1789, authorized Congress to establish “Post Offices and post Roads” but, unlike the Articles of Confederation, did not explicitly establish an exclusive monopoly. The first substantive postal law, enacted in 1792, listed post roads to be established, reflecting the traditional concept of postal service as a long-distance transport. It authorized the Postmaster General to enter into contracts for the carriage of “letters, newspapers, and packets” but limited the postal monopoly to “letter or letters, packet or packets, other than newspapers.”

Today’s 600,000 employee behemoth that delivers mail to every home in the country six days a week reflects the USPS’s evolution as a government entity. It does not reflect some cherished institution dreamed up by the Founding Fathers. According to Campbell, the Post Office “first began delivery of mail to a small portion of the U.S. population” in 1863:

Until the Postal Act of 1863, the Post Office remained essentially a contracting office for intercity transportation services. In fiscal 1862, costs of intercity and foreign transportation constituted 63 percent of all expenses. Before 1863, intercity letters were either held at the destination post office for collection or delivered by a “letter carrier” who acted as independent contractor and charged the addressee two cents, one of which went to the Post Office.

Then there’s the issue of intracity mail delivery:

A person could drop letters at a post for delivery by a letter carrier within the same city, but that was a secondary service as far as the Post Office was concerned; even after the 1863 act, such “drop letters” were considered “not transmitted in the mails of the United States.”

Delivery of local, intracity letters was pioneered by private companies such as Boyd’s Despatch in New York City and Blood’s Despatch in Philadelphia. One authority counted 147 private local postal companies. The “locals” introduced adhesive postage stamps at least as early as 1841. The Post Office did not introduce stamps until 1847 and did not require their use until 1851. Efforts by the Post Office to suppress the locals failed when, in 1860, a federal court ruled that the postal monopoly pertained only to the transportation of letters over “post roads” between post offices and did not prohibit the delivery of letters within a single postal district.

The Postal Code of 1872 extended the postal monopoly to the delivery of local letters, banning intracity private carries.

In arguing against ending the government’s mail monopoly, proponents occasionally romanticize it as a special American institution that has been with us since the nation’s founding. But the giant postal monopoly of today bears little resemblance to the limited postal service of history. And that’s not because horses have been replaced with little white trucks.

Discussion Questions

1. According to the article, the United States Constitution “allows the government to get involved in postal services, but that doesn’t mean that it has to.” Do you agree or disagree with this statement? Is a federally-operated postal service a delegated discretionary right, or is it a delegated mandatory responsibility? Explain your response.

According to Article I, Section 8 of the United States Constitution, “The Congress shall have power…(t)o establish post offices…” This is one of the delegated powers included in Article I, Section 8, powers that were an essential part of our Founding Fathers’ establishment of a centralized (i.e., federal) form of government. Although student opinions may vary in response to this question, all of the powers listed in Article I, Section 8 should at least arguably be construed as both a federal right and responsibility. For example, how would students feel if the government elected to no longer maintain a navy or to no longer maintain federal district and appellate courts other than the United States Supreme Court (these are two other delegated powers listed in Article I, Section 8?)

2. According to the article, the United States Postal Service (USPS) is “Uncle Sam’s business.” Comment on the approach of running a governmental department/agency as a business. Do you favor or disfavor such an approach? Should the entire federal government be operated like a business? Explain your response.

These are opinion questions, so student responses may vary. Technically, a business exists to make a profit, while traditionally, the government and its offices have been operated as non-profit organizations maintained for the “good of the people.” For students, operating a government agency as a business may sound unusual, but there has been a discernible trend in the United States to, if not actually run the government as a business, at least apply business principles (for example, efficiency and effectiveness) to the operation of government.

3. Should the United States government “privatize” the USPS? In your estimation, would doing so be constitutional or unconstitutional? Explain your response.

These are opinion questions, so student responses may vary. Answering these questions depends in large part to the interpretation of the postal power included in Article I, Section 8 of the United States Constitution, particularly in term of whether such a power is merely a discretionary right, or instead a delegated responsibility. It is interesting to note that historically, all of the delegated powers included in Article I, Section 8, including the maintenance of a U.S. postal system, have been exercised as both federal rights and responsibilities.

Article 3: “Trump’s Attacks on the Post Office Threaten Democracy”

https://www.theusconstitution.org/blog/trumps-attacks-on-the-post-office-threaten-democracy/

According to the article, in the weeks since the coronavirus (COVID-19) pandemic hit the United States, President Trump has waged war on one of our nation’s oldest institutions: the United States Postal Service (USPS). For example, earlier this month, the President threatened to veto a coronavirus relief package if it included emergency funding for USPS. And this is not the first time the President has attacked this important federal institution; he has also called the Post Office Amazon’s “Delivery Boy” and accused USPS of becoming “dumber and poorer.” Trump’s attacks come at a time when we need the Post Office most—our ability to hold elections in November and to fulfill our constitutional obligation to hold a national census depends on it.

The Post Office has a long history dating back to the founding era. It is one of a handful of institutions that is directly mentioned in the Constitution’s text. Although our national charter left many details to be filled in, the Framers recognized that a postal system would be essential to unify the nation and encourage the spread of ideas across distant states.

Article I, Section 8 authorizes Congress “[t]o establish Post Offices and post Roads.” In The Federalist No. 42, James Madison explained: “The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.”

This important constitutional power did not stay dormant. Just a few years after the Constitution’s ratification, Congress enacted the first substantive federal postal law. This 1792 law established a “general post-office” with “one Postmaster General, who . . . shall provide for carrying the mail of the United States.” The law also established post roads, allowed the Postmaster General to enter into contracts, established postage rates, and set penalties for “neglecting, detaining, delaying, or secreting letters.” Most importantly, the law subsidized newspaper circulation and allowed for the distribution of newspapers across the country. Notably, scholars have said that this “forged a communications revolution just as far-reaching as the later telegraph and internet revolutions.”

Indeed, that is true, as the post office created a central communications system that allowed for a robust exchange of ideas, something that is core to our democracy. As Alexis de Tocqueville aptly commented in his famous study of American democracy, the post office was a “great link between minds.”

As the United States continued to develop, USPS made changes to the postal system to ensure that the post office was accessible to everyone, no matter where they lived or how much money they had. For example, in the 1840s, after a study from a congressionally appointed Postal Commission found that mail was an essential tool for democracy, Congress altered the postage scale to be based on weight, which greatly reduced the cost of postage stamps. Around the same time, Congress also enacted laws to preserve the postal monopoly in cities in order to protect the rural cross-subsidy. At the turn of the twentieth century, Congress also appropriated money to authorize “rural free delivery,” which expanded postal routes across 28 states and ensured free delivery for those in rural areas, and still exists today. Trump’s attacks on the Post Office harm urban and rural dwellers alike.

The U.S. postal system has contributed to some of our most important debates about free speech in a democratic society. During the nineteenth century, abolitionists used the mail to circulate newspapers, books, and pamphlets in an effort “to show the horrors of the institution [of slavery,] . . . to develop sentiment against it . . . [and] to arouse the people to a realization of the evils of the institution.” In addition, the principles of the American Anti-Slavery Society specifically stated that it would “circulate unsparingly and extensively Anti-Slavery tracts and periodicals,” and William Lloyd Garrison, editor of the abolitionist paper, the Liberator, raised money to “provide for gratuitous distribution of anti-slavery publications” through the postal system.

The slave states in the South fought back by seeking to suppress abolitionist speech. In Maryland, for example, the legislature passed a law making it illegal for anyone to print or circulate material that could create discontent among enslaved persons. This proved the truth of Frederick Douglass’s charge that “[s]lavery cannot tolerate free speech.” With little to no communications technology at the time, the postal system made an extensive debate over slavery possible. The fight over censorship of the mails marks a key chapter in our First Amendment story and helped to crystalize the importance of protecting dissent in a democratic society.

Today, the post office is as important as ever in maintaining our democracy. One in six Americans live in states that do not permit online voter registration. In light of COVID-19, citizens residing in these states need a functioning post office if they are to have a chance to exercise their fundamental right to vote without endangering health. Come November, millions of Americans hope to vote by mail. Given the ongoing public health crisis, these Americans do not want to sacrifice their health to enjoy their right to vote. While the President has gone on several tirades against mail-in ballots due to their potential for fraud, that claim is wholly without merit, and is just another attempt by the administration to suppress the vote and harm our democracy. We cannot forget what happened just recently in Wisconsin, when voters, primarily in communities of color, were forced to brave long lines and huge crowds, and put their health at risk, in order to exercise their right to vote.

Just as we prepare for a crucial vote, the nation is also conducting the Census, the constitutionally mandated count of all persons that sets the framework for our democracy for the next decade. In 2020, the Census can be filled out online for the first in history. But for those without ready access to a computer or the internet, Census forms need to be mailed, as they have been for decades. Without a functional post office, the Census count could be badly skewed. This would lock into place unequal representation and unequal allocation of federal resources for the next ten years.

Throughout our history, the Post Office has been a “great link between minds.” Now, we need it more than ever for the sake of our democracy. If the history of the post office makes anything clear, it’s that the postal service must be preserved in order to safeguard some of our most basic democratic freedoms, if not our democracy itself.

Discussion Questions

1. As referenced in the article, in Federalist No. 42, part of the so-called Federalist Papers, James Madison proclaimed:

“The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.”

Mr. Madison published Federalist No. 42 on January 22, 1788. In your reasoned opinion, has the United States Postal Service (USPS) become an organization of “great public conveniency” as one of our Nation’s founding fathers envisioned? Explain your response.

This is an opinion question, so student responses may vary. In your author’s opinion, it is both fascinating and empowering to know that I can still mail a letter from Hickory, North Carolina, addressed to Fairbanks, Alaska, and reasonably expect that the letter will make it to “The Last Frontier” for fifty-five (55) cents (the current postal rate!)

2. In follow-up to Article 3, Question Number 1 above, do you agree or disagree with Mr. Madison that “(n)othing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care?” Explain your response.

This is an opinion question, so student responses may vary. In your author’s opinion, both the facilitation of interstate commerce and interstate communications are more than worthy of “the public care.”

3. Articles 2 and 3 of this newsletter have been juxtaposed to emphasize arguments both for and against the continued operation of the USPS as a public institution. Considering the arguments presented in both Articles 2 and 3, do you now favor or disfavor privatization of the USPS? Has your opinion now changed compared to the opinion you formulated after having read only Article 2? Explain your response.

These are opinion questions, so student responses may vary. For further guidance, please refer to the answers provided in response to Article 2, Questions 1 through 3 included earlier in this newsletter.