Author Topic: Admin Agencies, bureaucracy, regs in action: The Fourth Branch of the US Govt.  (Read 103224 times)


Crafty_Dog

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Re: Bureaucracy and Regulations in action: The Fourth Branch of the US Govt.
« Reply #251 on: April 24, 2021, 09:36:06 AM »
I like the way the article does the work to identify the deep pattern and support its analysis with specifics.



ccp

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"Bloomberg: Empowering Bureaucracy is no way to spur Economic Growth"

well little Napoleon spent billions helping bring to power a government hell bent on shoving down this country's throat the  largest expansion of bureaucracy since 1930's

    so Bloomberg News can start there   :-(


DougMacG

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Bureaucracy and Regulations, Fourth Branch of Govt, TWA 800, FAA
« Reply #256 on: July 29, 2021, 01:55:25 PM »


ccp

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ccp

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Re: Bureaucracy and Regulations in action: The Fourth Branch of the US Govt.
« Reply #259 on: August 11, 2021, 07:19:26 AM »
now I read the bill
itself did not pass
it was the "blueprint" that passed

more fake news

DougMacG

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100 new regulations this year on appliances:

https://www.toddstarnes.com/us/bidens-climate-czar-declares-war-on-kitchen-appliances/

What happened to CONGRESS passing laws and the President signing them?

Talk about kitchen table issues, you can't cook without govt approval?

G M

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Stop asking questions. Just give them more money and do what they tell you. Anything else is radical and possibly terroristic.

Disinformation is terrorism. Questioning the federal government is terrorism.


100 new regulations this year on appliances:

https://www.toddstarnes.com/us/bidens-climate-czar-declares-war-on-kitchen-appliances/

What happened to CONGRESS passing laws and the President signing them?

Talk about kitchen table issues, you can't cook without govt approval?

ccp

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I am already cursing the regs on sink faucets (of course thanks to the Great Snake)
that reduce the speed at which water comes out

now to get to the hot water it takes 3 x  longer

Trump mentioned this and I thought - EXACTLY right -

https://www.youtube.com/watch?v=NHo7aKgHo-s

of course the libs sat their smirking rolling their eyes
 and asking what does it mean or have to do with anything

as though the rest of us did not notice




DougMacG

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There are ways to innovate that do not involve a government mandate. But if you're going to have a government mandate, why not have it voted on by the people and their representatives like it says in the Constitution?

G M

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The constitution? Since when has that mattered?


quote author=DougMacG link=topic=2228.msg145634#msg145634 date=1651786392]
There are ways to innovate that do not involve a government mandate. But if you're going to have a government mandate, why not have it voted on by the people and their representatives like it says in the Constitution?
[/quote]

Crafty_Dog

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Our Constitution ALWAYS matters!

It is what makes America AMERICA.

And we must defend it against all enemies, both foreign and domestic!

"If it were to be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws -- the first growing out of the last. ... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." --Alexander Hamilton, Essay in the American Daily Advertiser, 1794

G M

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The American Republic is dead. The country you grew up in no longer exists.

We are tax cattle for the deep state.

Ask those in Garland"s Gulag about their constitutional protections.



Our Constitution ALWAYS matters!

It is what makes America AMERICA.

And we must defend it against all enemies, both foreign and domestic!

"If it were to be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws -- the first growing out of the last. ... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." --Alexander Hamilton, Essay in the American Daily Advertiser, 1794

Crafty_Dog

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The fate of the Republic has hung in the balance before.

I'm an American.  I fight to defend our Constitution from all enemies, both foreign and domestic.



G M

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The fate of the Republic has hung in the balance before.

I'm an American.  I fight to defend our Constitution from all enemies, both foreign and domestic.

The domestic enemies control the white house, DOD, the FBI/DOJ, the IRS and the IC.

Your move.

Crafty_Dog

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Yup.

Speaking Truth to Power, as all of us do here, is but part of it.

G M

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Yup.

Speaking Truth to Power, as all of us do here, is but part of it.

Speaking truth to power doesn't save you from government empowered famine or ethnic cleansing.

Crafty_Dog

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Duh.  Which is why speaking Truth to Power is not the only thing I do-- witness my garden and chickens, witness my abilities to defend myself.


Crafty_Dog

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ET: DHS Disinfo Boards lacks statutory authority
« Reply #272 on: May 07, 2022, 05:21:38 PM »
To maintain a pretense of Separation of Powers, a deeply important part of assessing Agency creation/action is to look at the authorizing legislation-- it must be by "intelligible principle" and meet the Administrative Procedure Act requirements for Due Process.

‘No Statutory Authority Exists’ to Back DHS Disinformation Board, Republican AGs Say, Warning Legal Action
By Rita Li May 6, 2022 Updated: May 7, 2022biggersmaller Print


A group of Republican attorneys general warned of legal action against the Department of Homeland Security’s (DHS) new Disinformation Governance Board, stating that “no statutory authority” exists to back its creation.

In a letter (pdf) submitted on May 5 to DHS chief Alejandro Mayorkas, Virginia’s Attorney General Jason Miyares, joined by 19 other Republican attorneys general, asked him to “immediately” disband the board that would “police Americans’ protected speech.”

“No statutory authority exists to support your creation of a board of government censors,” reads the letter to Mayorkas.

“Although Congress has considered a variety of measures to address the perceived dangers of ‘disinformation’ in the United States, none has passed. Instead, while the people’s elected representatives continue to debate this issue, you have arrogated to yourself the power to address it without congressional authorization, despite the far-reaching effects of the Disinformation Governance Board on Americans and our political process.”

Mayorkas revealed the new initiative to lawmakers during a congressional hearing on April 27, claiming to protect civil liberties and free speech, as Russia, China, and other adversaries attempt to stoke division and spread conspiracy theories or falsehoods among Americans. White House asserted earlier this week that the recently convened board on misinformation will be “nonpartisan and apolitical.”

Yet the lack of details on how the working group will function and the potential consequences of a government entity identifying and responding to “disinformation,” have drawn widespread controversies.

Calling it “an unacceptable and downright alarming encroachment” on civil rights of free expression, the Republican attorneys general specified in the letter “a chilling effect” that it can bring about nationwide.

“Americans will hesitate before they voice their constitutionally protected opinions, knowing that the government’s censors may be watching, and some will decide it is safer to keep their opinions to themselves.”

Republican members of Congress have already called for the board to be disbanded, before attorneys general threatened legal action in their latest message.

“This is unconstitutional, illegal, and un-American,” the Thursday letter concludes. “Unless you turn back now and disband this Orwellian Disinformation Governance Board immediately, the undersigned will have no choice but to consider judicial remedies to protect the rights of their citizens,” the group said.

Attorneys general from Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia joined the letter.

A spokesman from the DHS didn’t respond immediately to a request for comment.

Timing
The GOP attorneys general also went after what they called “highly suspect” timing of the DHS’s announcement of the board a week ago, following Elon Musk’s Twitter buyout with the stated purpose to pursue free speech.

The Biden administration has been “flagging problematic posts” on social media by its own admission and engaged with Big Techs and private sectors to prevent “disinformation,” the group noted in the letter.

However, Twitter announced on April 25 that it had reached a final agreement to be acquired by Musk for approximately $44 billion. The billionaire tech mogul unveiled days later that the takeover attempt is to reduce the “civilizational risk” to freedom and democracy from excessive and opaque restrictions on expression, although Twitter has repeatedly denied claims of political censorship.


“As [it] apparently loses a critical ally in its campaign to suppress speech it deems ‘problematic,’ you have created a new government body to continue that work within the federal government,” the attorneys general said.

“The contemporaneous occurrence of these two events is hard to explain away as mere coincidence. It instead raises troubling questions about the extent of the Biden Administration’s practice of coordinating with private-sector companies to suppress disfavored speech.”

The appointment of the executive director of the board, Nina Jankowicz, flagged a “clearer illustration,” according to the letter.

The former disinformation fellow at Washington-based think tank Wilson Center previously questioned the veracity of stories about Hunter Biden’s laptop and suggested the COVID-19 lab-leak theory was “politically” made up at the convenience of former President Donald Trump.

Jankowicz has come under fire for parodying a Christmas song to make it sexually explicit and adapting the Mary Poppins “Supercalifragilisticexpialidocious” song into a tune about fake news and disinformation.

Crafty_Dog

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Constitutional Thunder from the Fifth Circuit
« Reply #273 on: May 23, 2022, 07:30:00 AM »
This is a BFD!

======================================================


Constitutional Thunder Out of the Fifth Circuit
An appeals court ruling against the Securities and Exchange Commission is a blow to the runaway administrative state.
By The Editorial BoardFollow
May 22, 2022 4:27 pm ET


That rumble you hear in the distance is federal courts moving to re-establish the proper understanding of the Constitution’s separation of powers. The latest legal bombshell is a decision last week by the Fifth Circuit Court of Appeals (based in Louisiana) against the Securities and Exchange Commission.

***
The case involves hedge-fund founder George Jarkesy and an investment adviser, and it goes to the heart of whether the Constitution still protects individual liberty. In 2013 the SEC charged the pair with securities fraud for allegedly inflating the value of fund assets. The agency said the higher valuation allowed them to earn higher management fees.

Mr. Jarkesy wasn’t allowed to defend himself in a court under Article III of the Constitution. Instead the case came before an SEC administrative law judge, who ruled against Mr. Jarkesy and his business partner. The commissioners then affirmed the decision and ordered them to pay a civil penalty and disgorge allegedly ill-gotten gains. The commission barred Mr. Jarkesy from the securities industry.

Merits of the case aside, the constitutional problem is that the SEC acted as prosecutor, judge and jury. The Dodd-Frank Act lets the SEC decide whether to bring charges in its own tribunal or federal court. The agency usually chooses the former, as do other agencies such as the Federal Trade Commission.

Enter the Fifth Circuit, which held in Jarkesy v. SEC that the SEC’s tribunals, as currently structured, violate the Seventh Amendment’s right to trial by jury. As Judge Jennifer Walker Elrod explains for the 2-1 panel majority, the jury guarantee applies to all suits of “common law,” as understood at the time of the founding. This includes fraud prosecutions.

The Fifth Circuit also ruled that Congress’s delegation of legislative power to the SEC to decide where to bring fraud enforcement actions violates the Constitution’s separation of powers. Congress may grant agencies prosecutorial discretion to decide what cases to bring, Judge Elrod noted, but it cannot give them free rein to decide their judicial forum.

Notably, she cites Justice Neil Gorsuch’s dissent in Gundy v. U.S. (2019) in which he said the Supreme Court should revisit its nondelegation doctrine that has given too much leeway to the executive branch to perform legislative functions. Two new conservative Justices have joined the Court since Gundy and may be willing to take up their colleague’s invitation.

It gets better. The Fifth Circuit found that the job protections of administrative law judges violate the constitutional imperative that the President “take care that the laws be faithfully executed.” The Supreme Court has interpreted this to mean that a President must have power over officers’ appointment and removal.

Yet SEC judges can only be removed by the five SEC commissioners if the government’s Merit Systems Protection Board (MSPB) finds cause. Commissioners and MSPB members can only be removed by the President for cause. SEC judges are insulated from Presidential removal by two layers of for-cause protection. This violates the Court’s Free Enterprise Fund (2010) precedent.

All of this is a blow to the SEC, but it’s a blessing for the proper understanding of the Constitution. The agency isn’t used to losing cases since defendants often settle to avoid the expense and hassle of litigation. Credit to Mr. Jarkesy for fighting back. The Biden Administration could seek an en banc review of the panel decision, but Judge Elrod’s opinion is sound and unlikely to be reversed by the full Fifth Circuit.

The ruling applies only to the SEC, but it could encourage similar challenges against other independent agencies. Some conservative Justices have hinted that they’d like to overturn the Court’s wrong-headed Humphrey’s Executor (1935) precedent that upheld limitations on the President’s ability to remove members of bipartisan independent agencies. The Biden Administration will have to decide if it wants to take that risk by appealing to the Supreme Court.

***
High Court watchers are preoccupied these days with looming decisions on social issues, especially abortion and gun rights. But the movement to rein in the runaway administrative state is arguably more important for limiting government and protecting liberty. This is an essential project of the conservative judicial movement, and the Fifth Circuit ruling shows the thunder coming from the judicial provinces.


Crafty_Dog

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EPA decision-- good but less than we had hoped for
« Reply #275 on: June 30, 2022, 05:06:39 PM »
Second

Chief Justice Roberts Reins In the Pen-and-Phone EPA

Left: U.S. President Barack Obama and U.S. Vice President Joe Biden at the White House in Washington, November 9, 2016. Right: Chief Justice of the United States John Roberts in Washington, January 21, 2020. (Joshua Roberts/U.S. Senate TV/Reuters, Handout via Reuters )
By DAN MCLAUGHLIN
June 30, 2022 1:54 PM

The Court tells the EPA that it needs Congress if it wants to pass carbon-emissions laws.

The Supreme Court ended this momentous term the way it began: telling a federal administrative agency that it had overstepped its powers by writing laws without the authority of Congress. This time, it was the Environmental Protection Agency and its Obama-era Clean Power Plan rule, which sought to require existing coal-fired and natural gas-fired power plants to reduce carbon emissions by producing less electricity or converting to green-energy sources — as the Court described its aim, to “compel the transfer of power generating capacity from existing sources to wind and solar.” This is one last loss for Barack Obama’s “pen and phone” strategy to use the executive branch to write laws that Obama could not get through Congress after the 2010 and 2014 elections.

In terms of outcomes, the last day of the Court’s term ended with split decisions characteristic of Chief Justice John Roberts: The 6–3 Roberts opinion in West Virginia v. EPA striking down the Clean Power Plan rule was coupled with a 5–4 Roberts opinion in Biden v. Texas upholding the Biden administration’s power to undo the 2019 Trump-instituted Migrant Protection Protocols, also known as the “Remain in Mexico” policy. EPA was a clean split between the six conservative and three liberal justices; in Texas, Roberts and Justice Brett Kavanaugh joined with the three liberals, and Justice Amy Coney Barrett wrote that she agreed with their analysis of the legality of the policy but procedurally would not have ruled on the issue.

The EPA case was not the sweeping, root-and-branch rebuke to the administrative state that some conservatives had hoped for. The Court did not rule on whether Congress has the constitutional power to regulate carbon emissions from stationary power plants. It did not rule on the nondelegation doctrine — i.e., whether or to what extent Congress could constitutionally delegate power to the EPA to write such a rule. And it did not, at least directly, rule on the continuing viability of the Chevron doctrine or any of the other doctrines under which courts defer to administrative agencies in interpreting the law.

The Major Question

For all of that, EPA is still a pretty big win for democracy and separation of powers, capping off a momentous term full of such victories. The Court applied the “major questions” doctrine and concluded that the Clean Power Plan rule was such a significant policy that the agency needed clear statutory authority before it could assert the power to regulate. This is, if anything, a reversal of any deferential presumption favoring the administrative state:

In certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. . . . To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims.

You might think that asking a federal agency “on whose authority?” or “who gave you the power to do that?” should be the ordinary right of any American citizen living under a government of limited and enumerated powers. You might think that “something more than a merely plausible textual basis” is required any time the federal government claims the power to limit our life, liberty, or property. Courts are, however, typically more deferential than this if a regulation is not deemed to address a “major question.” It is the non-major questions that are governed by presumptions such as Chevron.

Now, as I explained in January, “the major-questions doctrine . . . is not actually a freestanding constitutional rule, but rather a rule of construction: courts should not presume that Congress has delegated authority to an agency on a particular topic if that authority is not explicit and the topic is a big, contentious national debate.” As the Court has said repeatedly, it will not presume that Congress hides “elephants in mouseholes”: Big grants of power on controversial issues are not to be magically discovered in vague or offhand language.

There is a major constitutional concern looming behind this doctrine: The separation of powers is undermined if executive agencies can assume the job of Congress by writing detailed laws on subjects Congress has addressed only obliquely. When Congress has clearly delegated that kind of authority in an open-ended fashion, the nondelegation doctrine comes into play to limit how much legislative power can be delegated to the executive. But what the major-questions doctrine actually does is apply a statutory canon of interpretation: The bigger the power exercised by the agency, the closer courts will look at the statutory basis for it.

If all of this sounds familiar, the Court has applied this doctrine before in environmental cases, in the Food and Drug Administration’s efforts to regulate cigarettes, and in the Biden administration’s Covid policies. As Roberts noted today, “such cases have arisen from all corners of the administrative state.” Justice Neil Gorsuch’s concurring opinion, joined by Justice Samuel Alito, made the case for the historical bases of the major-questions doctrine dating back to the 19th century, and took a barbed shot at Obama: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

The Biden administration has not kicked that habit. The Court began this term in August by finding that Congress never gave the CDC the power to issue a nationwide evictions moratorium. In January, the Court held that Congress never gave the Occupational Safety and Health Administration the power to issue a nationwide employer vaccine mandate, although the Court upheld the power of the Centers for Medicare and Medicaid Services to issue such a mandate for health-care workers employed by Medicare and Medicaid providers.

It is not some sort of rogue judicial activism for courts to apply canons of interpretation in reading statutes; judges have been doing that forever, and every law student is stuffed with Latin phrases reflecting the many such rules developed over time. Justice Antonin Scalia co-wrote an entire 400-page book with Bryan Garner detailing and explaining those rules. To the extent there is a case against the major-questions doctrine, however, the best argument would be that the courts should use the same approach for all assertions of administrative-agency legislative power.

The Job of Congress

The Clean Power Plan rule was draconian. As the Court observed, it imposed “numerical emissions ceilings so strict that no existing coal plant would have been able to achieve them” without shifting to a different method of energy production. “Indeed, the emissions limit the Clean Power Plan established for existing power plants was actually stricter than the cap imposed by the simultaneously published standards for new plants.” That inverted the standards Congress wrote in the EPA’s statute, the Clean Air Act, which granted more extensive powers over new plants than existing ones.

The Obama rule was still tied up in court when the Trump EPA repealed it in 2019. But as Roberts noted in another recent case, he is skeptical of efforts by agencies to use changes of administration as a way around judicial review of normal administrative procedures. The Biden administration argued that the case was moot because the rules had been repealed, but it vigorously argued that the rules were legal and gave every indication of wanting them reimposed, so the Court concluded that the dispute remains a live one.

Roberts, walking through the many previous disputes in which the major-questions doctrine has been explicitly or implicitly applied, explained why the Court remains vigilant about administrative overreach:

All of these regulatory assertions had a colorable textual basis. And yet, in each case, given the various circumstances, common sense as to the manner in which Congress would have been likely to delegate such power to the agency at issue, . . . made it very unlikely that Congress had actually done so. Extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices. . . . Nor does Congress typically use oblique or elliptical language to empower an agency to make a radical or fundamental change to a statutory scheme. Agencies have only those powers given to them by Congress, and enabling legislation is generally not an open book to which the agency may add pages and change the plot line. . . . We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.

The Court noted two big red flags of a major question: The EPA was asserting a new power it had not previously claimed, and it was trying to enact a rule only after efforts to get it through Congress as a new law had failed. Roberts had no doubt that the EPA was trying to write a law on a major question:

EPA claimed to discover in a long-extant statute an unheralded power representing a “transformative expansion in its regulatory authority. . . . It located that newfound power in the vague language of an ancillary provision of the Act, . . . one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.

Roberts quoted Justice Felix Frankfurter in 1941 on why courts should be skeptical of brand-new claims of a discovered power: “Just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.” He also caught the EPA admitting that it was doing something new, yet another object lesson in the difficulty of maintaining a legal position that is at odds with what the political branches say in public:

There is little reason to think Congress assigned such decisions to the Agency. For one thing, as EPA itself admitted when requesting special funding, “Understand[ing] and project[ing] system-wide . . . trends in areas such as electricity transmission, distribution, and storage” requires “technical and policy expertise not traditionally needed in EPA regulatory development.” . . . When an agency has no comparative expertise in making certain policy judgments, we have said, Congress presumably would not task it with doing so.

One wishes that Roberts had applied a similar skepticism when the IRS admitted it was passing an Obamacare rule “regardless” of the statutory language, but today’s decision takes the separation of powers more seriously than that.


Crafty_Dog

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PP: DOE mysteriously loses 160,000 comments on Title 9 sec re-def
« Reply #277 on: September 12, 2022, 04:28:28 PM »
160,000 public comments "missing" on Biden's Title IX sex redefinition proposal: The Biden administration is blaming a sudden decrease of public comments posted on the Regulations.gov website regarding the Department of Education's proposed redefinition of "sex" to Title IX protections on a "clerical error." The Biden administration has been pushing the proposal to redefine the Title IX designation of "sex" to include sexual orientation and gender identity. This change would effectively allow biological men to access female-only facilities such as bathrooms and locker rooms, as well as codify their right to participate on female sports teams for all colleges and universities that receive federal funding. The dubious "clerical error" eliminated 163,000 public comments from a total of more than 349,000. Making the matter even more fishy is the discrepancy between the Federal Register, which lists the total number of comments with none eliminated, and Regulations.gov, which curates to remove duplicates or spam comments. The Federal Register logs 21,000 fewer comments than Regulations.gov, which should be a technical impossibility. As Sarah Parshall Perry, senior legal fellow at The Heritage Foundation, observes: "The Department of Education's claim that the error in the number of comments is due to a clerical error doesn't pass the smell test. Far more likely is that they don't want the American people to know how unpopular this policy change is."



Crafty_Dog

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WSJ: Challenges to Agency power
« Reply #280 on: November 06, 2022, 02:49:02 PM »
As the Supreme Court’s originalists reinvigorate the separation of powers, federal agencies are fighting to dodge constitutional challenges to their political overreach. On Monday the Justices will consider in two cases whether to let them (Axon Enterprise v. FTC and SEC v. Cochran).


A bedrock constitutional principle is that Congress writes the laws, the executive enforces them, and the judiciary interprets them. This vital separation safeguards individual liberty. But independent agencies—the so-called fourth branch of government—have grown to accumulate all three powers, and they too often seek to supersede Congress and the judiciary.

Consider police body camera maker Axon’s run-in with the Federal Trade Commission. Axon says the agency threatened to force it via an administrative proceeding to divest a small acquisition and stand up a competitor using its intellectual property. The FTC almost always wins the cases it brings in its own tribunal since it plays investigator, prosecutor and judge.

Axon sued in federal court, arguing that FTC administrative law judges are exercising unconstitutional power. They have dual-layer protections from presidential removal, and the agency’s combination of “investigatory, prosecutorial, adjudicative, and appellate functions” violates the separation of powers.

The agency, however, said Axon would have to wait until the FTC finished its administrative process and was slapped with a potentially ruinous judgment before bringing its constitutional challenge in federal court. In other words, only after the FTC crushes you can you challenge its power to do so. The FTC’s argument flouts law and Supreme Court precedent.

Congress expressly gave federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” While the FTC Act requires defendants to wait for the commission to render a final order before appealing in court, Congress didn’t restrict judicial review of constitutional challenges.

The High Court’s Free Enterprise Fund (2010) decision upheld federal court jurisdiction over a similar constitutional challenge to the Public Company Accounting Oversight Board. Chief Justice John Roberts wrote in the majority opinion that the government “offers no reason and cites no authority why” separation-of-powers challenges are different than other complaints of constitutional violations.

Now the FTC argues that Congress implicitly stripped federal district courts of jurisdiction by expressly providing appellate court review of final agency orders. In a separate case before the Supreme Court, the Securities and Exchange Commission makes the same argument concerning a constitutional challenge to removal restrictions for its administrative law judges.

But as the defendant in the SEC case argues, “proceedings frequently drag on for several years and take such an enormous personal, financial, and reputational toll on their targets that most—despite vigorously asserting their innocence—are forced to capitulate.” Preventing constitutional challenges until a punishment is rendered has the effect of denying plaintiffs the right to judicial review.

Administrative agencies are compounding their constitutional abuses by throwing up roadblocks for defendants to obtain relief. In doing so, they’re underscoring why courts need to keep them in check.
===============================================

How Can a Trial Be Fair When the Judge Works for the Prosecutor?
Federal agencies also make the laws and hear appeals. The Supreme Court should take a skeptical look.
By Peggy Little
Nov. 6, 2022 4:27 pm ET


The United States Supreme Court building in Washington.
PHOTO: MICHAEL REYNOLDS/SHUTTERSTOCK

The ever-expanding administrative state has become a fourth branch of government. Unelected, unaccountable and tenure-protected bureaucrats enact most rules governing Americans’ lives—thousands of new ones every year.

Seeking to aid this swelling administrative state, Congress has created in-house courts, which have taken over most regulatory enforcement cases from the judiciary. These administrative-law judges are employed by the same agency that brings the prosecutions. Unsurprisingly, the agency wins the vast majority of cases—90% at the Securities and Exchange Commission and 100% at the Federal Trade Commission. Worse, these administrative adjudications trap citizens in costly yearslong proceedings.

Michelle Cochran, a Texas certified public accountant, has been ensnared in costly and repeated SEC adjudications for more than six years. Hers is one of two cases, SEC v. Cochran and Axon v. FTC, that the Supreme Court will hear Monday. The question in both cases is whether Americans hauled before agency ALJs can challenge the ALJ’s unconstitutional removal protections in federal district courts before such unconstitutional proceedings take place.

As it stands, these ALJs can’t be removed by any one person and are structurally beholden to the agency that employs them. Put another way, the constitutional system’s separation of powers made it imperative that the judicial power be separated from the executive. These ALJs are accountable to no one—not the president, not the judiciary (which they purport to replace) and least of all the electorate.


These structurally biased in-house courts strip Americans of their constitutional rights to due process and jury trials, shift the burden of proof from the government to the accused, deprive citizens of the protections of the Federal Rules of Evidence and Civil Procedure, and eviscerate meaningful judicial review—all essential conditions for the fair and impartial administration of justice.

Ms. Cochran worked for a difficult boss who disregarded accounting rules and was the real subject of SEC concern. Ms. Cochran had quit her job in 2013 for those reasons. Nonetheless, the SEC included her as an ancillary target of its 2016 charges though no losses or damages were connected to her work.

Blindsided by these charges dating back some six years, and unable to find a lawyer willing to represent her in a forum where the SEC almost always wins, Ms. Cochran defended the action without an attorney before an administrative-law judge who publicly boasted that he had never ruled against the agency. In 2017 the ALJ hit her with a $22,500 fine and a draconian five-year professional suspension.


In 2018, before her decision was final, the Supreme Court ruled in Lucia v. SEC that the SEC’s administrative-law judges hadn’t been constitutionally appointed. That vacated the decision against Ms. Cochran. She was forced to defend herself all over again before a new ALJ. That eight years had passed since the events in dispute hamstrung her ability to mount a defense.

The new SEC judge assigned to her case was still at least doubly insulated from removal by the president—or any one person—which both the Supreme Court held in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), and as the government argued in Lucia was unconstitutional. The high court also unanimously held in Free Enterprise Fund that federal courts have jurisdiction to decide such structural constitutional claims. So Ms. Cochran, determined to retain her hard-won right to practice as a CPA, must be allowed to sue in federal court to vindicate her right to be tried only once—and in a constitutional tribunal.

Supported by flawed precedents in five U.S. circuit courts of appeals, the SEC was able to have her case dismissed. The federal district judge who ordered dismissal recognized the injustice: “The court is deeply concerned with the fact that plaintiff already has been subjected to extensive proceedings before an ALJ who was not constitutionally appointed. . . . She should not have been put to the stress of the first proceedings, and, if she is correct in her contentions, she again will be put to further proceedings, undoubtedly at considerable expense and stress, before another unconstitutionally appointed administrative law judge.” Ms. Cochran faced another ALJ decision that would eventually be reviewed and vacated—setting her up for a third trial.

This madness isn’t confined to the SEC. Axon Enterprise, Inc., an Arizona maker of police body cameras, was in a similar bind. The FTC sought to block its acquisition of a small competitor on antitrust grounds without any showing of an anticompetitive effect. Axon was willing to divest the company but balked when the FTC demanded that Axon surrender its intellectual property to the now-competitor. Rather than submit to a yearslong administrative trial the FTC was sure to win, Axon sued in district court so that its case might be heard before a constitutional adjudicator. Axon, like Ms. Cochran, was denied relief and also lost on appeal over a powerful dissent.

Ms. Cochran persuaded a majority of the judges on the entire Fifth Circuit that this process makes no sense. Her victory created the circuit split that brought Ms. Cochran and Axon to the Supreme Court.

These challenges have the potential to turn around decades of accretion of judicial power in administrative agencies. Thomas Jefferson wrote that “the most sacred of the duties of a government” is “to do equal and impartial justice to all of its citizens.” An agency that serves as lawmaker, prosecutor, judge and court of appeal makes a mockery of Jefferson’s aspiration.


Ms. Little is senior litigation counsel at the New Civil Liberties Alliance, which represents Michelle Cochran.
« Last Edit: November 06, 2022, 02:51:04 PM by Crafty_Dog »

Crafty_Dog

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WT: Gorsuch vs. Chevron
« Reply #281 on: December 21, 2022, 05:22:40 AM »


FISHING FOR A FIGHT

Gorsuch has controversial 1984 regulatory case in sight

BY STEPHEN DINAN AND ALEX SWOYER THE WASHINGTON TIMES

Supreme Court Justice Neil M. Gorsuch was expected to be conservatives’ barbarian at the gates of big government, leading a charge to tear down the 1984 case they pinpoint as a legal justification for expansion of the regulatory state.

Those hopes were inflated by the confirmation of two more Trump appointees to the high court, delivering what conservative legal scholars thought might be reinforcement for the effort to tear down Chevron U.S.A. v. Natural Resources Defense Council.

Yet Chevron remains, having survived myriad chances to strike it from the books.

The latest miss came last month, in a case involving the Department of Veterans Affairs’ interpretation of rules governing disability coverage. The high court declined to take the case, sparking a spirited dissent from Justice Gorsuch, who said it was time to dustbin Chevron.

“At this late hour, the whole project deserves a tombstone no one can miss,” he wrote.

None of his colleagues joined his dissent, but he will get another chance to try to sway them soon in a case filed by fishers who complain that the National Marine Fisheries Service has run amok with a plan to charge fishing vessels as much as $700 a day to hire a monitor to police their catch.

The fishers lost in the federal appeals court, 2-1, in a ruling in which the majority cited Chevron in deferring to the agency’s judgment.

“Judges are supposed to be a check on executive-branch abuses, but Chevron deference turns that upside down and transforms judges into rubber stamps for the whims of the federal bureaucracy,” Stefan Axelsson, captain of a fishing vessel in New Jersey, wrote in the National Review this month.

The Fisheries Service is delaying the program until next year. The fishers are asking the high court to hear their case and get a final ruling on what the law allows.

“Chevron deference” is the term of art lawyers gave to how courts have treated the 1984 ruling, which involved a fight between the energy giant and the Environmental Protection Agency and its environmental allies. The court, in a 6-3 ruling, said the EPA’s interpretation of a law was reasonable and that courts should defer to agency judgment in cases in which the law was ambiguous.

To defenders, it blazed a path to good government, putting the experts at federal agencies in charge of the finer points of policy making.

To detractors, Chevron is the stuff of Orwellian dystopias, siphoning massive amounts of political power away from Congress and the courts and turning it over to unelected and usually anonymous bureaucrats.

In the ensuing decades, the case has become legendary, less for what it said than the way it has been used by some lower courts — particularly the appeals court in Washington that handles so many agency cases — to create a presumption in favor of an agency’s decisions.

“The problem with Chevron isn’t the initial decision, it’s the fact that some of the time afterward, some courts treat it as if it’s giving the agency the authority to interpret the law instead of the court,” said Ronald A. Cass, former dean emeritus of Boston University School of Law.

He has called Chevron “the most talked about, most written about, most cited administrative law decision of the Supreme Court. Ever.”

It played a major role at Justice Gorsuch’s confirmation hearing, with the then-nominee drawing cheers from Republicans for saying it was time judges got back on the playing field and reined in agencies that freelanced beyond the corners of the law.

After two more Trump additions, Justices Brett M. Kavanaugh and Amy Coney Barrett, legal scholars were predicting the “death of Chevron.”

But a series of cases that presented such an opportunity came and went without a death blow.

Legal scholars offered several reasons for its staying power.

“Overruling Chevron may seem like a good idea when there is a Democratic administration, but will frustrate a Republican president as well. The court will likely keep the status quo,” said Josh Blackman, a professor at South Texas College of Law.

Adam Feldman, a Supreme Court expert and creator of Empirical SCOTUS, said the high court likely has three justices — Samuel A. Alito Jr., Clarence Thomas and Justice Gorsuch — who would be willing to revisit Chevron.

But when it comes to the other GOP appointees, their willingness to overturn the precedent is unclear.

“The justices are still trying to defi ne their role in implementation of congressional policies. As long as the agencies are in some control, the court isn’t pit directly against Congress as often. The oversight will change if deference to agencies diminish,” he said. “I think this might frighten some of the justices on the fence from totally overruling Chevron and then having to go back to a system where the court is really monitoring Congress’ actions more closely.”

Mr. Cass said justices don’t see a need to overrule the decision because they aren’t particularly restrained by it.

“They’ve been ignoring it when they don’t feel like it has anything to say that they want to hear,” he said.

For Justice Gorsuch, ignoring it isn’t good enough.

And he said there are real-world consequences. For example, Thomas H. Buffington, the veteran who challenged the VA’s interpretation of disability benefi ts, won’t get the assistance Congress might have intended.

“Maybe Chevron maximalism has died of its own weight and is already effectively buried. But even if all that’s true, it offers little comfort for Mr. Buffington and the future veterans who will be forced to live with the VA’s rule and the federal circuit’s precedent,” Justice Gorsuch scolded. “The same goes for other Americans who still find themselves caught in Chevron’s maw from time to time. No measure of silence (on this court’s part) and no number of separate writings (on my part and so many others) will protect them.”


SOMETHING SMELLS FISHY: A legal case filed by fishers complained that the National Marine Fisheries Service has run amok with a plan to charge fishing vessels to hire a monitor to police their catch. The fishers are asking that the high court hear the case. ASSOCIATED PRESS PHOTOGRAPHS


AGAINST: Justice Neil M. Gorsuch’s spirited dissent on a case called for overturning the Chevron U.S.A. v. Natural Resources Defense Council ruling.


For defenders of the Chevron case, it blazed a path to good government, putting experts at federal agencies in charge of the finer points of policy making. For detectors, it’s the stuff of nightmares and shifts power away from Congress and courts. ASSOCIATED PRESS

Crafty_Dog

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Re: Bureaucracy and Regulations in action: The Fourth Branch of the US Govt.
« Reply #282 on: December 21, 2022, 11:51:23 AM »
Actually, I am surprised at the effort made herein for legal literacy. 

That said, the article misses the major point-- which is Separation of Powers-- the executive branch is not a legislative power. 

There is also the matter of the limits of the grant of quasi-legislative power under the statute e.g. reaching well beyond work place safety in an effort to require vaxxes.  The President does not get to bootstrap beyond the limits of the grant of power to the agency.


https://www.msn.com/en-us/news/us/a-federal-court-just-took-judicial-obstruction-of-biden-s-presidency-to-a-new-level/ar-AA15uYX9?ocid=msedgntp&cvid=d6e7d49ea3b442b49d9a83f6c2f59fe1

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About time SCOTUS took a look at this!
« Reply #283 on: January 02, 2023, 05:55:41 AM »
Supreme Court to look at CFPB case on budget, Congress

Created 12 years ago as part of Dodd-Frank law

BY DAVE BOYER THE WASHINGTON TIMES

The Consumer Financial Protection Bureau could be nearing the end of its run as a regulator free from Congress controlling its budget.

The bureau, which is funded by the Federal Reserve, is asking the conservative Supreme Court to uphold that arrangement, which Republicans say is unconstitutional. But the CFPB’s legal arguments to the high court contradict its long-standing position that it doesn’t receive appropriations from Congress.

The Biden administration, confronted with a federal appeals court ruling that found the CFPB’s funding method violates the Constitution, has asked the Supreme Court to hear an appeal and make a decision by this spring. The administration said the ruling “calls into question virtually every action the CFPB has taken in the 12 years since it was created,” and that leaving the agency’s funding in limbo would have “major” consequences for the U.S. financial industry.

Analysts say the problem has been brewing ever since Congress created the CFPB for consumer protection in 2010 as part of the Dodd-Frank law imposing more regulations on the financial services industry. The legislation was a response to the Wall Street meltdown of 2008-09.

“There’s always been from the very beginning clouds of legal uncertainty around the CFPB,” said Adam White, a senior fellow at the American Enterprise Institute and co-director of George Mason University’s Gray Center for the Study of the Administrative State. “The Biden administration is clearly very keen to get this in front of the justices.”

The CFPB was conceived largely by Sen. Elizabeth Warren, Massachusetts Democrat, when she was a professor at Harvard University. Its mission is to police against “unfair, deceptive, or abusive” business practices in areas ranging from credit cards to payday loans.

Over 12 years, the CFPB has sent more than 3.3 million consumer complaints to companies, with a 98% timely response rate by financial firms, according to the House Financial Services Committee. It has delivered more than $14.9 billion in monetary compensation, principal reductions, canceled debts and other consumer relief.

Among its recent actions, the bureau reached a $3.7 billion settlement with Wells Fargo this month over abuses tied to mortgages, auto loans and overdraft fees.

The bank was ordered to pay a $1.7 billion civil penalty and more than $2 billion “in redress to consumers,” the CFPB said.

To ensure the CFPB’s independence, lawmakers set up its funding to come directly from the Fed instead of annual congressional appropriations. The agency’s director is authorized to request whatever funding he or she believes is “reasonably necessary” to carry out CFPB’s operations, as long as the amount doesn’t exceed 12% of the Federal Reserve’s “total operating expenses.” (The bureau was allowed to exceed the cap by $200 million in each of its first five years as long as it notifi ed the president and Congress of any anticipated surplus).

For fiscal 2022, the CFPB requested $642 million for operations that include 1,600 employees. In 2018, the bureau requested $381 million.

The bureau is headed by a sole director appointed by the president and confirmed by the Senate. Current Director Rohit Chopra was nominated by President Biden and confirmed by the Senate for a five-year term in September 2021.

Conservatives have long argued that the CFPB isn’t accountable to voters because it evades Congress’ power of the purse. They have criticized the bureau under Democratic administrations as a regulator run amok, saddling businesses with a wide array of new red tape such as the Payday Lending Rule, which was crafted during the Obama administration and finalized during the first year of the Trump administration.

The complaints came to a head on Oct. 19, when the Fifth Circuit Court of Appeals vacated the Payday Lending Rule because, the judges said, the CFPB’s funding is unconstitutional. The court said that the bureau’s “perpetual insulation from Congress’s appropriations power, including the express exemption from congressional review of its funding, renders the bureau ‘no longer dependent and, as a result, no longer accountable’ to Congress and, ultimately, to the people.”

By creating this self-funding system, the court ruled, “Congress ran afoul of the separation of powers embodied in the Appropriations Clause.”

In urging the Supreme Court to hear its appeal of the ruling, the Biden administration said the Fifth Circuit relied on an “erroneous” interpretation of the Constitution’s Appropriations Clause.

“Congress enacted a statute explicitly authorizing the CFPB to use a specified amount of funds from a specified source for specifi ed purposes,” the administration said in its brief. “The Appropriations Clause requires nothing more.”

The CFPB said its funding method “indisputably establishes an appropriation under the longaccepted understanding of that term.”

But Mr. White points out that the bureau and its leaders have consistently and repeatedly claimed since its creation that the CFPB does not receive “appropriations.”

Among the examples, then-Director Richard Cordray testifi ed to Congress in 2012 that the bureau’s revenues were “nonappropriated funds.” And the bureau’s annual report in 2014 said Dodd-Frank gave it “a source of funding outside the appropriations process.”

“The agency itself, throughout its entire life, has insisted that its funding is not appropriations,” Mr. White said. “Suddenly, the agency has discovered that all along it did get appropriations. I don’t think the agency has been that foolish for that long. I think they are now suddenly changing their story and trying to reframe what Dodd-Frank did. Dodd-Frank was not an appropriation statute.”

The CFPB’s legal brief to the Supreme Court said Congress “is free to modify the Bureau’s funding at any time by simply passing a statute.” It also notes that the federal Court of Appeals for the District of Columbia upheld the CFPB’s funding mechanism because it “fits within the tradition of independent financial regulators.”

The Biden administration said it’s worried that the Fifth Circuit’s ruling will invite new legal challenges to the CFPB’s regulations and will frustrate its “critical work administering and enforcing consumer financial protection laws.”

For example, the administration said if CFPB’s regulations on home loans were vacated, “mortgage lenders would have to immediately modify the disclosures they give millions of consumers each year, and borrowers could seek to rescind certain mortgage transactions that had relied on regulatory disclosure exceptions.” The Mortgage Bankers Association, National Association of Home Builders, and National Association of Realtors have warned that calling into question the CFPB’s past actions could bring “catastrophic” results for the real estate finance industry.

Mr. White dismissed the claim that a Supreme Court ruling against the CFPB would result in economic chaos.

“American financial institutions’ fortunes do not rise and fall merely on the existence of a single federal agency,” he said. “To the extent that the CFPB has for a decade leveraged enormous power over financial institutions based on an extremely shaky constitutional foundation, that reflects a mistake of the CFPB and of the people who created it.”

At a House Financial Services Committee hearing on Dec. 14, Mr. Chopra said the CFPB is taking a variety of actions, including issuing orders to Big Tech firms regarding their use of payment platforms such as Apple Pay, PayPal and Venmo. He said the bureau wants to know “what data they are extracting from transactions and whether they can use that data to preference their other business lines.”

“We are also particularly interested in how these payment platforms implement existing consumer protections, as well as how they make decisions on account approvals, freezes, and terminations,” Mr. Chopra said.


Crafty_Dog

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The Fourth Branch seeks to break free of remaining constraints
« Reply #285 on: January 23, 2023, 09:00:50 AM »
The Chamber of Commerce Will Fight the FTC
We’ll go to court if necessary to stop the legally baseless ban on noncompete clauses.
By Suzanne P. Clark
Jan. 22, 2023 3:29 pm ET


When Lina Khan assumed the chairmanship of the Federal Trade Commission, she said her goal was to “shape the distribution of power and opportunity across our economy.” Her proposed ban on all employment-based noncompete agreements suggests she doesn’t intend to let the law or Constitution get in her way.

The U.S. Chamber of Commerce will oppose the proposed regulation with all the tools at our disposal, including litigation. If the FTC can regulate noncompete agreements without authorization from Congress, there is no aspect of employment or commercial arrangements that it doesn’t have the authority to regulate or ban arbitrarily.

In its more than 100-year history, the FTC has never enforced a rule to regulate competition, and Congress never intended the agency to have that power. Instead, legislators gave the FTC authority to identify on a case-by-case basis individual acts that constitute unfair competition. Critically, this authority is subject to judicial oversight.

This structure has been a key to preserving innovation in a free market and avoiding overregulation. It prevents the FTC from writing the laws it is assigned to enforce, which is necessary to protect the constitutional separation of powers.

Yet the present FTC isn’t content to live under the legal strictures imposed by elected representatives and the Constitution. Before issuing the proposed noncompete ban, the FTC issued a radical reinterpretation of the agency’s authority under Section 5 of the Federal Trade Commission Act, which governs “unfair methods of competition.” This means the FTC is walking away from having to weigh consumer benefits against consumer harms or even identify actual harm to consumers. In her dissent, FTC Commissioner Christine Wilson slammed the new rules for giving the agency “authority summarily to condemn essentially any business conduct it finds distasteful.”

The proposed regulation to ban noncompetes takes this one step further. Rather than reviewing and judging the specific and individual conduct of companies under Section 5, the FTC has proposed simply to issue a nationwide ban of a type of employment contract that three unelected commissioners have decided they don’t like.

The minds of progressive activists must be running wild with ideas of what they could do if this approach is allowed to stand. Don’t like the pay gap between executives and nonexecutives? The FTC could simply declare it unfair and regulate it. Think that businesses above a certain size shouldn’t be allowed to get any bigger through mergers? The FTC could simply declare those businesses can’t make acquisitions.

Sound far-fetched? Like the banning of noncompetes, both of these policies have been put forward by Sens. Bernie Sanders and Elizabeth Warren.

This fight is about much more than the fate of noncompete agreements. That’s why the Chamber of Commerce will fight in court to hold the FTC accountable to the rule of law.

Ms. Clark is president and CEO of the U.S. Chamber of Commerce.

Crafty_Dog

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The Power to Regulate is the Power to Control
« Reply #286 on: January 23, 2023, 05:03:09 PM »
second

https://www.aier.org/article/the-power-to-regulate-is-the-power-to-control/

The Power to Regulate Is the Power to Control
Robert E. WrightRobert E. Wright
– January 19, 2023Reading Time: 4 minutes


In his 1819 opinion in McCulloch v. Maryland, US Supreme Court Chief Justice John Marshall famously stated what everyone already knew, “the power to tax is the power to destroy.” Americans also knew that the power to regulate imposes costs too, so it is akin to the power to tax. And they are now relearning a lesson they should have never forgotten, that the power to tax or to regulate is also the power to control, not just in the supposed “public interest” but in the interest of the regulators themselves, or specific politicians, or the government more generally.

Once, companies could fight government mandates and win. Perhaps most infamously, during World War II, the Western Cartridge Company of East Alton, Illinois, successfully fended off the integration order of FDR’s Fair Employment Practice Committee (FEPC), largely because white workers were willing to strike over the matter at a time when their output was desperately needed for the war effort.

By the 1930s’ New Deal, however, the US government regulated some industries enough to be able to control their managerial decision-making. Radio was perhaps the most important of those heavily controlled industries. Established in June 1934, early in FDR’s first term as POTUS, the Federal Communications Commission (FCC) licensed radio spectrum a mere six months at a time. That gave it the power to harass radio stations that criticized the New Deal, or FDR himself. The FCC soon developed a reputation for denying licenses or causing major paperwork headaches for radio stations daft enough to question the New Deal Order or the administration’s official narratives.

One particularly stunning example of government censorship via corporate proxy occurred in February 1934, when the nation’s radio spectrum was still under the control of the FCC’s bureaucratic precursor, the Federal Radio Commission. Like more recent censorship-by-proxy, it led to death and destruction.

Eager to further his version of a Great Reset, FDR announced that contracts with private airlines to deliver the public mails were abrogated (as gold clauses in bonds had been) and the routes turned over to the US Army Air Corps. Unfortunately, the military’s pilots back then were far from being candidates for Top Gun school. As predicted, they began crashing. Soon, a dozen had died, along with many of the messages they had been entrusted to carry.

To hide his failed policy, FDR censored veteran pilot Eddie Rickenbacker, who took to the airwaves to bring public attention to the matter. NBC Radio’s William B. Miller warned Eddie that if he said anything controversial on air, he would be pulled off, on orders from Washington. Instead of criticizing FDR as intended, Eddie dissembled.

The Twitter Files saga proves that the US federal government is still using its regulatory powers to coerce corporations into censoring critics, despite the fact that doing so is patently unconstitutional. As the US Supreme Court ruled in 1960 in Bates v. City of Little Rock (361 US 516), First Amendment rights “are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.”

The problem of indirect government censorship on the internet, though, has been brewing for decades. In 2006, University of Pennsylvania law professor Seth F. Kreimer warned in a law review article of “censorship by proxy” and noted that the government was looking for the “weakest link” in the digital supply chain between unwanted content providers and their audiences. His article reveals that most early efforts at censorship by corporate proxy by Western governments focused on bad guys, like pedophiliac Nazis, whom nobody wanted to defend. The problem was that the tools they developed were scalable and ready to use against anyone, even someone like Rickenbacker.

The subsequent emergence of a few social media megasites like Facebook, Tik Tok, Twitter, and YouTube created the weak links that the government wanted. Their corporate owners are huge, and hence have much to protect from incursions by the IRS, the FBI, the FCC, the DOJ, and perhaps even the most potent regulator of all, the National Archives and Records Administration.

Social media corporations likely calculated that being willing minions of the Leviathan would not hurt their bottom lines, and could perhaps even augment them. Small users who might pose a risk can be easily ejected without discernibly hurting revenues. Tossing many small users might start to add up, though, especially if they were kicked off for reasons that could be applied to larger accounts, too. Why social media corporations did not hire fancy lawyers to protect themselves from losing “whales” remains unclear, but it is possible that the government played the dirty old trick of hiring all the best ones in town.

There was also the risk that users would flee platforms that developed reputations for censoring legal and highly sought after content, especially if close substitutes were available. Indeed, when it became apparent that something untoward was happening on the big social media platforms, competing entrepreneurs established new ones allegedly immune, or at least less susceptible, to government censorship. The new social media platforms attracted users and hence took some market share away from the big incumbents, but none have been breakout successes. Some may be engaging in the same types of censorship recently exposed at Twitter, while others, most infamously the microblogging site Parler, proved susceptible to attacks on their links to the internet, including app downloading services.

The “chilling effect” of government censorship by corporate proxy has Americans on an icy slope that bottoms out in the sort of political slavery feared by the Founders and Framers. The slope thankfully has been a long one, with some flatter areas, and the Constitution via SCOTUS has thrown us safety lines, but we may be picking up speed. Moreover, one of the most robust of those safety lines, the First Amendment, has been stretched to the breaking point.


Robert E. Wright is a Senior Research Fellow at the American Institute for Economic Research. He is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997. 

Selected Publications
Reducing Recidivism and Encouraging Desistance: A Social Entrepreneurial Approach of Journal of Entrepreneurship and Public Policy (Summer 2022).
“The Political Economy of Modern Wildlife Management: How Commercialization Could Reduce Game Overabundance.” Independent Review (Spring 2022).
“Sowing the Seeds of a Future Crisis: The SEC and the Emergence of the Nationally Recognized Statistical Rating Organization (NRSRO) Category, 1971-75.” Co-authored with Andrew Smith. Business History Review (Winter 2021).
“AI ≠ UBI Income Portfolio Adjustment to Technological Transformation.” Co-authored with Aleksandra Przegalinska. Frontiers in Human Dynamics: Social Networks (2021).
“Liberty Befits All: Stowe and Uncle Tom’s Cabin.” Independent Review (Winter 2020).
“Pioneer Financial News National Broadcast Journalist Wilma Soss, NBC Radio, 1954-1980.” Journalism History (Fall 2018).
“Devolution of the Republican Model of Anglo-American Corporate Governance.” Advances in Financial Economics (2015).
“The Pivotal Role of Private Enterprise in America’s Transportation Age, 1790-1860.” Journal of Private Enterprise (Spring 2014)
“Corporate Insurers in Antebellum America.” Co-authored with Christopher Kingston. Business History Review (Autumn 2012).
“The Deadliest of Games: The Institution of Dueling.” Co-authored with Christopher Kingston. Southern Economic Journal (April 2010).
“Alexander Hamilton, Central Banker: Crisis Management During the U.S. Financial Panic of 1792.” Co-authored with Richard E. Sylla and David J. Cowen. Business History Review (Spring 2009).
“Integration of Trans-Atlantic Capital Markets, 1790-1845.” Co-authored with Richard Sylla and Jack Wilson. Review of Finance (December 2006), 613-44.
“State ‘Currencies’ and the Transition to the U.S. Dollar: Clarifying Some Confusions.” Co-authored with Ron Michener. American Economic Review (June 2005).
“Reforming the U.S. IPO Market: Lessons from History and Theory,” Accounting, Business, and Financial History (November 2002).
“Bank Ownership and Lending Patterns in New York and Pennsylvania, 1781-1831.” Business History Review (Spring 1999). 
Find Robert
SSRN: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362640
ORCID: https://orcid.org/0000-0003-3792-3506
Academia: https://robertwright.academia.edu/
Google: https://scholar.google.com/citations?user=D9Qsx6QAAAAJ&hl=en&oi=sra
Twitter, Gettr, and Parler: @robertewright



ccp

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proposed new FBI building
« Reply #289 on: February 04, 2023, 07:49:43 AM »
surely diversity equity and climate change are paramount considerations:

https://www.theamericanconservative.com/local-reactions/

cost : whatever .....

something very Leftist/ Democrat party going on here

G M

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Re: proposed new FBI building
« Reply #290 on: February 04, 2023, 09:49:08 AM »
Remember when the left hated the FBI?

Good times, good times


surely diversity equity and climate change are paramount considerations:

https://www.theamericanconservative.com/local-reactions/

cost : whatever .....

something very Leftist/ Democrat party going on here

Crafty_Dog

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WSJ: Yes the bureaucrats are coming after our gas stoves
« Reply #291 on: February 05, 2023, 04:02:11 PM »
Banning Gas Stoves by Regulation
New Energy Department rules would eliminate most current models.
By The Editorial BoardFollow
Feb. 3, 2023 5:57 pm ET

When progressives can’t pass their agenda through the front door in Congress, they sneak it through a regulatory back window. That’s what the Biden Administration is doing with gas stoves, as the Energy Department this week proposed new rules that amount to a gradual de facto ban.

A Biden appointee on the Consumer Product Safety Commission ignited a firestorm last month by threatening to ban gas stoves. After criticism from West Virginia Sen. Joe Manchin and others, the CPSC chairman rejected the idea, and White House officials said they didn’t support banning gas stoves.

Then why has the Energy Department proposed new efficiency standards that would ban the sale of most gas stoves currently on the market? The stated purpose of the rule-making is to reduce energy consumption and save consumers money. But these benefits are meager. The department estimates the proposed rule would reduce energy use by a mere 3.4% from the status quo, and consumers on average would save $21.89 over a cook-top’s lifetime.

Even this assumes the standards are technically achievable without compromising performance. A spokesperson for the Association of Home Appliance Manufacturers tells us that gas cook-tops would have to be completely redesigned to comply. Burners might have to become smaller and heavy grate designs altered, which would increase cooking times.

Twenty of the 21 gas stove-top models that the Energy Department tested wouldn’t comply with its proposed standards. Manufacturers would have to spend hundreds of millions of dollars redesigning stoves, if they bother.

Those costs would be passed to consumers in higher prices. The Energy Department estimates increased appliance prices will be offset by lower energy bills as well as climate and health benefits. But these benefits are speculative while higher product costs and reduced performance will directly harm consumers.

Making appliances more energy efficient involves trade-offs. Consumers and manufacturers may choose to make them, but they shouldn’t be forced. Recall how federal energy-efficiency standards reduced the performance of dishwashers. Machines that once washed and dried dishes in an hour now take two to three, and often still don’t get the job done.

Biden officials claim the proposed gas efficiency standards are feasible. But that’s what they also say about their stringent fuel-economy mandates, which effectively force manufacturers to produce more electric vehicles. In both cases the Administration is using regulation to impose policies and coerce behavior they can’t get Congress to endorse.

The new rules betray that the Administration is trying to eliminate gas stoves by whatever regulatory means possible. The Biden CPSC was preparing to use the Federal Hazardous Substances Act as a pretext to ban them before the public uproar. Richard Trumka Jr.—the commissioner who floated the ban last month—claimed that emissions from gas stoves are a “hidden hazard.” Energy Secretary Jennifer Granholm flogged a dubious study claiming that 12.7% of childhood asthma cases in the U.S. are attributable to gas stoves.

The Inflation Reduction Act also includes a $840 rebate to buy electric stoves plus $500 to convert from gas. Yes, Americans, they really are coming for your gas stoves.

DougMacG

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We Met at the Bar
« Reply #292 on: February 08, 2023, 11:59:58 AM »
We Met at the Bar

Having already downed a few power drinks, she turns around, faces him, looks him straight in the eye and says, "Listen here, good looking. I will screw anybody, anytime, anywhere, their place, my place, in the car, front door, back door, on the ground, standing up, sitting down, naked or with clothes on...It doesn't matter to me. I just love it."

His eyes now wide with interest, he responds, "No kidding... I'm in Government too. Are you federal or state?

Crafty_Dog

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The hidden part of the Chips Act
« Reply #293 on: March 29, 2023, 07:22:53 AM »
Gina Raimondo, Social Policy Planner
Her effort to defend the strings on Chips Act funding is hilarious.
By The Editorial BoardFollow
March 28, 2023 6:55 pm ET

WSJ

Commerce Secretary Gina Raimondo has one heck of a deadpan. Semiconductor companies that want federal funds under the Chips Act are being told to follow mandates from the Biden Administration on everything from child care to union pay for construction workers. Ms. Raimondo is insisting with a straight face that this is only about helping chip makers be successful.

“There is zero ‘social policy’ that we’re trying to achieve here,” she told the Journal in an interview. “We want them to show us a workforce plan, including how they think about child care, not because we have a social agenda but because we know [that] they’re struggling to hire workers.” You’re trying too hard, Madam Secretary.

When the Commerce Department began rolling out the rules in February, news reports noted President Biden’s grand ambitions to subsidize child care. Once it became clear those ideas would fail on Capitol Hill, as the New York Times reported, “Ms. Raimondo gathered aides around a conference table. She told them, she said, that ‘if Congress wasn’t going to do what they should have done, we’re going to do it in implementation’ of the bills that did pass.”

The rules are even framed in a way that puts social policy at the top. “Child care is critical to expanding employment opportunity for economically disadvantaged individuals, including economically disadvantaged women,” reads one of the notices from Ms. Raimondo’s bureaucracy. “The Department requires that any applicant requesting CHIPS Direct Funding over $150 million provide a plan for access to child care for facility and construction workers.”


Ms. Raimondo is not really so daft as to think private companies can’t handle their workforces without the feds ordering them to offer certain benefits in their own interest. But telling the truth won’t get her a promotion to Treasury Secretary.

Crafty_Dog

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Who could have seen this coming? Today's episode
« Reply #294 on: April 01, 2023, 08:37:59 AM »
A Biden Bait-and-Switch on Electric Vehicles
As Joe Manchin feared, Treasury is rewriting the Inflation Reduction Act’s green subsidy limits.
By The Editorial BoardFollow
March 31, 2023 6:37 pm ET

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Sen. Joe Manchin, D-W.Va., asks questions during a Senate Appropriations Subcommittee on Financial Services and General Government hearing to examine proposed budget estimates and justification for the 2024 fiscal year at the Capitol in Washington on Wednesday, March 22, 2023. (AP Photo/Amanda Andrade-Rhoades)
PHOTO: AMANDA ANDRADE-RHOADES/ASSOCIATED PRESS

We interrupt the latest Donald Trump melodrama for a word from Biden Administration regulators. While the world isn’t watching, and certainly the press corps isn’t, regulators on Friday announced they are essentially rewriting last year’s Inflation Reduction Act so more electric vehicles will qualify for subsidies.

In return for his vote, West Virginia Sen. Joe Manchin insisted on numerous conditions for the IRA’s $7,500 EV tax credit. He wanted to encourage more U.S. manufacturing and ensure subsidies don’t go to the affluent. The law imposed an income limit to qualify for subsidies of $150,000 for individual EV buyers, as well as a price cap for vans, SUVs and pickups ($80,000), and sedans ($55,000).

To qualify for $3,750 of the credit, an increasing share of a vehicle’s battery minerals such as lithium and nickel also had be extracted or processed in the U.S. or in a country with which the U.S. has a free-trade agreement. The other half of the credit was supposed to be available only for vehicles in which a majority of its battery components are made in North America, starting at 50% this year and up to 100% by 2029.

Few cars currently on the market were expected to qualify for even half of the credit. Most minerals are mined and processed in countries with which we don’t have trade agreements, such as China, Indonesia and the Democratic Republic of Congo. Key battery components—namely, active anode and cathode materials—are mostly produced in China, Japan and South Korea.

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The Treasury Department’s proposed rules for the tax credit drive a big-rig through Mr. Manchin’s conditions. EVs leased to consumers will be able to qualify for a separate commercial vehicle tax credit, which doesn’t entail sourcing, income or price restrictions. Dealers or auto finance companies could pocket the tax credits or pass them onto customers.

Treasury is also redefining “free trade agreements” to include one-off deals with countries that commit not to impose trade barriers on critical minerals. The White House struck such a deal with Japan this week and is negotiating deals with Europe to allay its leaders’ anger over the subsidy conditions.

Anode and cathode materials in batteries would also be treated as critical minerals rather than components. Treasury’s expansive definition of trade deals and battery components will enable more vehicles to qualify for both halves of the credit and all but blow up Mr. Manchin’s sourcing conditions. No wonder the Senator is angry.

“It is horrific that the Administration continues to ignore the purpose of the law which is to bring manufacturing back to America and ensure we have reliable and secure supply chains,” he said Friday. “It is a pathetic excuse to spend more taxpayer dollars as quickly as possible and further cedes control to the Chinese Communist Party in the process.”

This rewrite of the rules means that the real cost of the climate and energy subsidies in the IRA will be far more than the $391 billion that Democrats claimed when they passed the bill. Goldman Sachs estimated recently that the cost could be $1.2 trillion over 10 years.

Unions and progressives are also angry about the Administration’s one-off mineral trade agreements, which aren’t being submitted to Congress and don’t include stringent environmental and labor rules. Public Citizen, the leftwing lobby, warned that “dangerous, dirty mining corporations that violate human rights” could “‘launder’ their minerals in Japan before shipping to the United States.”

What did they expect? The Administration has made climate its paramount priority and knows fewer consumers will buy EVs without subsidies. The public can comment on the proposed rule for 60 days, and Mr. Manchin said his comment “is simple: stop this now—just follow the law.” We wish him luck, but don’t expect Team Biden to listen. They got what they wanted when the bill passed last year.


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Crafty_Dog

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SCOTUS 9-0 against the Fourth Branch
« Reply #299 on: April 15, 2023, 08:55:42 AM »

IMHO this is a significant ruling.  It is very good news.

=============================================


Supreme Court Rules Against Biden Administration in Agency Lawsuit Dispute
By Matthew Vadum
April 14, 2023Updated: April 14, 2023
ET

A Supreme Court ruling on April 14 made it easier to challenge the reach of two powerful federal agencies—the U.S. Federal Trade Commission (FTC) and the U.S. Securities and Exchange Commission (SEC).

In its new red tape-cutting decision that is a defeat for the Biden administration, the Supreme Court took steps to rein in the so-called administrative state and reaffirm the separation of powers doctrine that prevents any specific branch of the government from exercising the core functions of another. The idea behind the doctrine is to discourage the concentration of power and make sure there are checks and balances.

Critics of the administrative state claim that in-house adjudications carried out by agencies are unfair because the tribunals, unlike regular courts, lack fixed evidentiary rules, allowing the agencies to function as prosecutor, judge, and jury. They argue that the tribunals are unconstitutional because they are not politically accountable.


The litigants challenging the agencies argued they should be able to contest the way the tribunals are constituted in federal courts without first having to launch a lengthy, expensive challenge within the administrative system.

But the Biden administration argued that challengers may only proceed to court after losing in potentially expensive, protracted agency proceedings.

The new ruling encompasses two cases: Axon Enterprise Inc. v. FTC, court file 21-86, and SEC v. Cochran, court file 21-1239.

Scottsdale, Arizona-based Axon makes body cameras and digital evidence management systems for law enforcement.

Axon purchased an insolvent competitor, Vievu LLC, for around $13 million in 2018. A month later the FTC sent Axon a letter indicating the acquisition raised antitrust concerns. Axon claimed it was subjected to “extensive and expensive investigatory proceedings,” and after 18 months of this “with no end in sight, Axon offered to walk away from its acquisition entirely,” but this did not satisfy the FTC.

Axon offered to unload its Vievu assets and provide millions of dollars in working capital to “a divestiture buyer,” but instead the FTC demanded that Axon transform Vievu “into a ‘clone’ of Axon using Axon’s intellectual property,” and threatened Axon with “an administrative proceeding” if it failed to do so.

Michelle Cochran is a certified public accountant in Texas.

In 2016, the SEC brought an enforcement action against Cochran, claiming she violated the Exchange Act by failing to comply with auditing standards issued by the Public Company Accounting Oversight Board when performing quarterly reviews and annual audits between 2010 and 2013.

An SEC administrative law judge (ALJ) fined Cochran $22,500 and banned her from practicing before the SEC for 5 years. Cochran objected but before the agency could rule on her objection, the Supreme Court held in Lucia v. SEC (2018) that SEC ALJs are officers of the United States under the Constitution’s Appointments Clause, who must be appointed by the president, a court of law, or a department head.

Cochran’s case was reassigned to a new ALJ. Cochran sued in federal court to halt the SEC’s administrative enforcement proceedings against her, arguing that because the agency’s ALJs enjoy multiple layers of for-cause removal protection, they are unconstitutionally insulated from the president’s power to fire federal officials. She also argued that the SEC violated her due process rights by failing to follow its own rules and procedures.

On April 14, the Supreme Court ruled (pdf) unanimously against the agencies. The court’s opinion was written by Justice Elena Kagan. Justice Neil Gorsuch did not join the court’s opinion; instead, he concurred in the judgment of the court but filed a separate opinion explaining his reasons for supporting the end result.

Kagan noted that both Axon and Cochran challenged the constitutional authority of federal agencies, claiming that ALJs are “insufficiently accountable to the President, in violation of separation-of-powers principles.”

The challenges are “fundamental, even existential,” as the litigants argue that “the agencies, as currently structured, are unconstitutional in much of their work.” The function of the court here is not to resolve those challenges but “to decide where they may be heard,” the justice wrote.

Objections to agency decisions follow a prescribed procedure laid out in statute. A party first makes a claim before the agency and then, if needed, to a federal court of appeals, she wrote.

But here Axon and Cochran “sidestepped that review scheme” and went to federal district court to halt the administrative proceedings.

Kagan said the district courts have jurisdiction to hear the legal challenges.

“The ordinary statutory review scheme does not preclude a district court from entertaining these extraordinary claims,” she wrote.

The court reversed the decisions of the two federal courts of appeal involved and remanded the cases for “further proceedings consistent with this opinion.”

The Epoch Times reached out to Axon attorney Paul Clement and the U.S. Department of Justice, which represents the two agencies, for comment, but had not received a reply from either as of press time.