Author Topic: Bureaucracy and Regulations in action: The Fourth Branch of the US Govt.  (Read 95523 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."