Listen to Consumer Podcast - Episode 4 - Advisory on Federal Stimulus Visa Debit Card

See insert above that comes in mailing with the Federal Stimulus Visa Debit Card.

Listen to EPISODE 4 of the Westchester Consumer Protection weekly PODCAST (2:30 min clip on May 27, 2020) for my advisory on why people must be careful with Federal Stimulus Visa Debit Card that is arriving at homes across US over past week - some people actually threw it away thinking it was junk mail.

LINK:

https://www.podbean.com/eu/pb-5g6xk-dde67b

Here are 2 helpful posts on this issue:

https://www.consumerfinance.gov/about-us/blog/economic-impact-payment-prepaid-card/

https://www.irs.gov/newsroom/millions-of-people-will-get-their-economic-impact-payment-by-prepaid-debit-card

Check your mail and be careful.

Jim Maisano, Esq.

JMaisanoEsq@gmail.com

914-636-1621

Did you know you will be receiving a letter from 2020 Federal Census next week?

Next week, most Americans should receive a letter from the Census Bureau - don't throw it away! For the first ever, you can answer that letter online. Here's what the Census' website  - www.census.gov - says about this letter:

How to verify a mailing is from the Census Bureau:

If you receive a survey or a letter in the mail from the Census Bureau, the envelope contains information that will help you verify its legitimacy. For example:

• “U.S. Census Bureau” in the return address or “U.S. Department of Commerce” which is the Census Bureau’s parent agency.
• Jeffersonville, IN in the return address. The Census Bureau has a mail processing center located there.

Households will receive an invitation in the mail to complete the 2020 Census online, by phone, or by mail.  The enclosed envelope to mail back a completed paper questionnaire would be addressed to Jeffersonville, IN, or Phoenix, AZ.

If you're wondering why we do the census every ten years, here's some background from the Census website:

• As mandated by the U.S. Constitution, our nation gets just one chance each decade to count its population.
• The U.S. census counts every resident in the United States. 
• It is mandated by Article I, Section 2 of the Constitution and takes place every 10 years. 
• The data collected by the census determine the number of seats each state has in the U.S. House of Representatives (a process called apportionment) and is also used to distribute billions in federal funds to local communities.

The Census was debated by our founding fathers! Here's more historical background from Census website:

The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress.

Enshrining this invention in our Constitution marked a turning point in world history. Previously censuses had been used mainly to tax or confiscate property or to conscript youth into military service. The genius of the Founders was taking a tool of government and making it a tool of political empowerment for the governed over their government.

They accomplished that goal in 1790 and our country has every 10 years since then. In 1954, Congress codified earlier census acts and all other statutes authorizing the decennial census as Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.

Jim Maisano, Esq.

JMaisanoEsq@gmail.com

914-636-1621

Important Free Speech Rules For College Students - PASS ON TO STUDENTS!

Unfortunately, we read too often about colleges trying to stifle free speech on campus, in particular when students dare to speak about controversial views. How sad that this is happening at colleges - the exact places which should be incubators of ideas - all ideas. Students should be pushed to free their minds during college years, listen to alternative views and participate in a marketplace of ideas.

Reason.com - a website with a libertarian point of view - provides outstanding coverage of free speech issues. Reason put together nine short videos on different free speech subjects. Since I have a son in college, I enjoyed reading "College and the First Amendment: Free Speech Views." At this link you will find the post and video (just over 4 minutes): 

College and the First Amendment: Free Speech Rules (Episode 7)

Please share this with any college students you know. It will certainly be an education for them on their free speech rights on campus. They will quickly learn they have substantial 1st Amendment rights if they attend a public college, although this is not true at private colleges. They will also learn that in the classroom, the professor is still in charge, and he or she can put limits on debate, challenge students and even cut them off.

Thanks,

Jim

James Maisano, Esq.

93 Wilson Dr.

New Rochelle, NY 10801

914-636-1621

JMaisanoEsq@gmail.com

Everyone Needs To Consider "Digital Assets" When Drafting A Will

Over the past decade, it's become a requirement for attorneys to add some language in wills to address digital assets. Here's a sample I recently used in a will:

"Reference is made to my digital assets, an inventory of which, with a list of relevant user names and passwords, I intend to maintain. Such inventory shall be kept in a secure location and shall be made available to my Executor upon my death. Upon my death, my Executor shall have full access to my digital assets including all rights, powers and privileges that I have."

Here in New York State, we now have a law that specifically addresses access to digital assets by fiduciaries:
Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act

Section 13-A-2.2 of this law necessitates adding digital assets language to a will:

(a) A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications.  If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.

(b) If a user has not used an online tool to give direction under paragraph (a) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.

(c) A user's direction under paragraph (a) or (b) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.

Here's an excellent post on this issue from the law firm of Farrell Fritz:
https://www.nyestatelitigationblog.com/2019/03/articles/fiduciaries/death-and-digital-content-protecting-digital-assets-after-the-death-of-a-user/

Please feel free to contact me if you have any questions about covering digital assets in a will or other estate planning issues.

Jim

James Maisano, Esq.

93 Wilson Dr.

New Rochelle, NY 10801

914-636-1621

JMaisanoEsq@gmail.com

National K9 Veterans Day & Statue for WWII Hero "Chips"

Happy National K9 Veterans Day!

I proudly appeared and spoke at the announcement today that a statue will be built in Lasdon Park to honor "Chips" and other animals that supported our military. Last year I read an article about Chips – the most decorated dog in WWII – who performed heroic acts and saved American lives. In the article I noticed that Chips was from Pleasantville New York and passed this info over to County Executive George Latimer, which started the process that led to today's ceremony - here's the video:

LINK: https://www.youtube.com/watch?v=IhdQhuXm4Xw&feature=youtu.be

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Defend the Constitution and Rule of Law, Oppose the President's Emergency Declaration for Border Wall

I joined the U.S. Marines Corps and became an attorney to defend and protect the Constitution. There's never been a question in my mind that the principle of the rule of law over the rule of man is worth fighting for and critically important to the continued success of our nation. No one can ever be above the law - not even a president. When I served for two decades as a Westchester County Legislator, I believe my colleagues on both sides of the aisle respected my commitment to always following the County Charter and other laws.

I now watch our current politics with disgust as Democrats and Republicans regularly promote the party line over the rule of law. This is perfectly illustrated by the failure of Republicans in Congress to oppose President Trump's actions on Friday. He signed the budget continuation to avoid another federal shutdown, but immediately followed that with the signing of a "Declaration for a National Emergency" to build a wall along our southern border with funds never approved by Congress. I'm not addressing the merits of the border wall here, but I do believe this emergency declaration will be blocked in the federal courts.

It's well-established that the Constitution requires all spending bills to originate in the House of Representatives. The spending bill compromise last week only provided $1.375 billion for another 55 miles of the border wall. Therefore, the President's appropriation of $8.1 billion for said wall in the emergency declaration is unconstitutional because it violates the constitutionally mandated separation of powers.

President Trump has taken an unconstitutional and illegal act to use the military to seize land and build a wall without proper congressional appropriation. This must be recognized as a historically bad and dangerous precedent for future disputes between ANY President and Congress. Remember that in the Presidential Oath, President Trump swore that he “will to the best of his ability, preserve, protect and defend the Constitution of the United States,” and he has certainly violated that commitment here.

For an excellent summary of legal problems with the emergency declaration read, Prof. Ilya Somin's posts, The Perils of Trying to Use Emergency Powers to Build Trump's Wall, and Donald Trump can call a 'national emergency,' but that doesn't mean he can build the wall where he points out the requirement for Congressional approval before all this land can be taken by eminent domain:

"Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump’s wall requires using eminent domain on a massive scale. A third of the needed land is owned by the federal government. The rest would have to be taken from private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are almost 5,000 privately owned lots in the likely path of the wall. Securing the land and building on it is likely to be costly and time-consuming. Construction and legal battles over compensation can drag on for years."

I consider myself to be a constitutional conservative, so I respect and support the separation of powers set forth in the Constitution, and if you consider yourself a constitutional conservative, you must oppose the President's emergency declaration.

Let's be clear, had a Democrat president signed a similar unconstitutional emergency declaration, every Republican in Congress would be criticizing it with every fiber in their bodies. If they don't oppose the Trump decalarion, they have no credibility left.

Republicans supporting Trump's emergency declaration don't understand (or are intentionally ignoring) how much it violates decades of core Republican legal and constitutional principles. Most importantly, if I'm incorrect and the Trump emergency declaration somehow survives legal challenges, then mark my word, the same Republican elected officials supporting Trump's emergency declaration now will be screaming from the mountain tops when a future Democrat president uses this bad precedent for other unconstitutional actions they disagree with by using emergency powers, and a perfect example could be the Green New Deal.

Every American should oppose this emergency declaration on constitutional grounds, and that especially includes every Republican in Congress who claims to be a constitutional conservative.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Elected Officials Should Not Be Blocking Twitter Followers

I believe that reporter Joe Mahoney is correct here:

https://twitter.com/TipMahoney/status/1095728525263421445

A state legislator would violate the First Amendment by blocking the media or constituents from his or her Twitter feed. Joe Mahoney also had a link on Twitter to a post on the ACLU website - Court Rules Public Officials Can't Block Critics on Facebook - which explains why State Senator Parker's action is unconstitutional. The President faced the same issue on Twitter and lost in federal court - Judge Rules Trump Can’t Block People on Twitter.

No one is above the law, especially elected officials. When this State Senator used Twitter to discuss state issues, his Twitter page became a public forum where viewpoint discrimination is not allowed. One benefit of social media is we can watch our representatives more closely, and we can't hold them accountable if they can simply block us from seeing what they are doing.

I hope the ACLU demonstrates a commitment to its roots as a free speech advocate and brings an action against State Senator Parker as soon as possible.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Be Safe on Internet

This post contains some excellent advice on how to stay safe on the internet:

https://securitycheckli.st/

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Professor Somin's Op-Ed on Border Wall

I'm a fan of George Mason Law Professor Ilya Somin. He writes regularly for one of my favorite places on the internet - The Volokh Conspiracy - and his book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is terrific.

Unfortunately, too much of the political debate over President Trump's proposed border wall is poisoned by knee-jerk, politically obsessed partisans. However, if you wish to review a more thoughtful perspective on this issue, check out this link from a January 19, 2019 Washington Post op-ed by Professor Somin:

To build the wall, Trump might make thousands of Americans suffer

I wish all Americans could read this op-ed to benefit from a more balanced and independent analysis of the border wall issue.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Conference at Emory on Free Speech and Academic Freedom

We should all be thankful that thoughtful and concerned people are still fighting to protect and advance free speech and academic freedom - see information on conference at Emory next month -  March 21 to March 23:
https://reason.com/volokh/2019/02/04/conference-at-emory-321-323-on-academic

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com