Administrative Agencies, bureaucracy, regs in action: 4th Branch of the US Govt.

[Crafty_Dog]

Gas Stoves Triumph Over Berkeley
A federal appeals panel overrules the California city’s ban on natural gas hookups.
By The Editorial BoardFollow
April 17, 2023 6:43 pm ET

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PHOTO: SCOTT OLSON/GETTY IMAGES

The Ninth Circuit Court of Appeals on Monday delivered a setback to the progressive war on gas stoves by holding that federal law pre-empts local bans. New York Gov. Kathy Hochul, take note.

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Berkeley, Calif., in 2019 became the first city to prohibit natural gas connections in new buildings. San Jose, New York City, San Francisco, Seattle and others have followed. Ms. Hochul has proposed a statewide ban on gas hookups in new small buildings in 2025 and larger ones in 2028.

Not so fast. The California Restaurant Association challenged Berkeley’s ban in federal court, arguing that the Energy Policy and Conservation Act (EPCA) pre-empts local regulation of gas appliances. A lower-court judge disagreed but was overruled Monday by a three-judge Ninth Circuit panel.

Judge Patrick Bumatay explains for the panel that the EPCA explicitly prohibits states and localities from regulating “energy efficiency, energy use or water use” once a federal energy conservation standard becomes effective for a “covered product.” The law’s federal pre-emption sweeps broadly and covers local regulations “concerning” gas appliances.


Berkeley argued that the law only pre-empts local standards dictating the design and manufacture of appliances—not regulations that affect the distribution of energy sources such as natural gas. The Biden Administration essentially agreed in an amicus brief.

But as Judge Bumatay points out, federal law defines “energy use” as “the quantity of energy directly consumed by a consumer product at point of use” by appliances, and Berkeley’s ban on new gas hookups “necessarily impacts” the quantity of gas used.

“By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that,” he wrote. “States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly.”

Judge Diarmuid O’Scannlain noted in a concurring opinion that the judiciary’s federal pre-emption doctrine is “troubling and confused” and merits more clarity from the Supreme Court. Fair enough. But as usual, progressives are seeking to advance their anti-fossil fuel agenda through a legal back door when they can’t get it through Congress.

[Crafty_Dog]

https://www.washingtontimes.com/news/2023/apr/21/supreme-court-takes-administrative-state-and-power/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=ipz4kIWSR8dR1gXVA%2BzSzr4B7P7X0gRSSQ9rlVa1EyOk87VOP0UTwLvZH2sLJTsX&bt_ts=1682123096442

[Crafty_Dog]

https://www.nationalreview.com/news/supreme-court-agrees-to-hear-case-that-could-spell-the-end-of-judicial-deference-to-federal-agencies/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=31335791

[G M]

https://www.zerohedge.com/political/pennsylvania-amish-kept-true-their-traditions-then-government-came

Let’s see, the feral government can tuck around at the border of a nuclear power 6000 miles away, but can’t be bothered to protect actual Americans on American soil by maintaining a border as required by the constitution, but hey let’s fluke with the Amish.

Why not?

[Crafty_Dog]

https://dailycaller.com/2023/05/10/manchin-block-biden-nominees-epa/?utm_source=piano&utm_medium=email&utm_campaign=breaking&pnespid=rbdkDT1fNagY2evJqjKvCpmP7x60WcN6L.nlzfpjv0ZmQFe2V1JmbWjU8Blm4SfkpceCahNs

[G M]

https://media.gab.com/cdn-cgi/image/width=852,quality=100,fit=scale-down/system/media_attachments/files/137/976/168/original/682907683a1fa71f.jpg

[Crafty_Dog]

She may be cute, but the thought is defeatist.  It surely it will be true if we quit as the Goolag, the Pravdas (and our GM? haha) would have us do.  A shot not fired is always a miss. 

[G M]

She may be cute, but the thought is defeatist.  It surely it will be true if we quit as the Goolag, the Pravdas (and our GM? haha) would have us do.  A shot not fired is always a miss.

A realistic assessment of one’s situation is essential. Delusional optimism is exactly how you get defeated.

Sear the quote below in your brain. Make it your mantra.

You must never confuse faith that you will prevail in the end – which you can never afford to lose – with the discipline to confront the most brutal facts of your current reality, whatever they might be.”
James Stockdale

[Crafty_Dog]

You preach to the choir with this 

Do appreciate that on the big picture the four of us are in harmony.

As David Gordon would say, and as I often riff now here and elsewhere "Prepare to have (y)our assumptions shattered!"

[Crafty_Dog]

https://www.theepochtimes.com/supreme-court-rules-against-epa-in-major-wetlands-case_5290344.html?utm_source=Morningbrief&src_src=Morningbrief&utm_campaign=mb-2023-05-26&src_cmp=mb-2023-05-26&utm_medium=email&est=PM62UKG2MeYQ4m4MEm3PyapUSim9jOB75C7Ckh7xnCGlYN%2Fb3jrZ2C1jXDNWMSrSP855

[Crafty_Dog]

2024 Presidential Candidates Against the Administrative State
Trump, DeSantis and even Robert F. Kennedy Jr. recognize the need to reassert political control.
By James Bacon
May 31, 2023 12:35 pm ET





The emerging question of the 2024 presidential election: Who will slay the federal leviathan? The beast goes by another name—the administrative state—and primary contenders are increasingly placing it front and center in their campaigns.

In his Twitter Spaces launch with Elon Musk, Florida Gov. Ron DeSantis promised to “reconstitutionalize the executive branch and bring the administrative state to heel.” Democratic candidate Robert F. Kennedy Jr. began his White House bid by saying he’d “take the CIA and shatter it into a thousand pieces and scatter it to the winds.” Businessman Vivek Ramaswamy has a bold proposal to eliminate all civil-service protections for federal employees. And in Donald Trump’s first speeches of the 2024 cycle, he claimed he is better positioned than his opponents to “root out the deep state” in 2025, having learned from his personnel mistakes during his first term.

What was once obscure has become obvious: Presidents today exercise a fraction of the executive-agency control that Franklin D. Roosevelt did when he and Congress created our modern government. The Covid lockdowns encouraged by Anthony Fauci and the recently uncovered coordination between the government and social-media platforms to censor what they arbitrarily deemed “misinformation” are fresh on everyone’s mind. That these bureaucrats pursued their own agenda while Mr. Trump ostensibly had control over them proves that until you fix the administrative state, there’s no guarantee that executive-branch policy will reflect the president’s views.

The problem is that few politicians on the right have more than a surface-level understanding of this issue. Nearly all the scholarship on the administrative state has been done by left-wing academics for left-wing purposes. Most appointees who have served in Republican administrations have been content to get along with the administrative state—tinkering on the margins of policy without trying to change the system. Their dearth of knowledge has led to reform proposals that are often vague, unfeasible and half-baked.


In the modern era, only two teams have attempted to curb the administrative state’s power: Ronald Reagan’s Office of Personnel Management, led by Donald Devine, and Mr. Trump’s Office of Presidential Personnel, led by John McEntee. Both men installed political loyalists among the presidents’ appointees and took major steps to curtail career bureaucrats’ power. Mr. Devine used reduction-in-force exercises—government-speak for layoffs—when employees’ work wasn’t up to snuff. Mr. McEntee began eliminating civil-service protections for policy-making bureaucrats, among other measures. Both men moved the bureaucracy’s culture in the right direction, but because of limited time in office they weren’t able to finish the structural reforms for lasting changes.

The only way the next president can solve the problem for good is to assemble the right team from the beginning. It is necessary but insufficient to fill the executive branch’s roughly 4,000 political positions with appointees committed to the president’s agenda. He needs a White House made up of people with firsthand knowledge of how bureaucratic politics operate and the will to use that knowledge for a system overhaul. It isn’t enough to have competent conservatives. As president you need people who can outsmart the bureaucrats by devising unconventional ways around the obstacles they’ll erect.

There are things these operatives need to know. The first is which positions are critical choke points and which are mostly ceremonial. One must recognize when an agency is a lost cause that should be gutted vs. when it should be restaffed. One must also know which positions require a subject-matter expert vs. a politically aligned appointee who may lack expertise.

Staff must be well-versed in the Civil Service Reform Act of 1978, which can be used to rein in bureaucracy without congressional action. It’s also essential to know how to restructure the management of the White House, which has become its own sprawling bureaucracy of career officials.

In his presidential announcement speech, Mr. Kennedy explained that the joke in Washington is that political appointees are expected to go through the motions—not make waves—and sign off on whatever policy the civil servants produce. His response was straightforward: “I get the joke, but I don’t think it’s funny.”

The next president needs to embrace that mindset and the people who share it.

Mr. Bacon is a senior adviser to the Heritage Foundation’s Presidential Transition Project. He served as White House director of operations for presidential personnel, 2020-21.

[Crafty_Dog]

Supreme Court Strikes Down Biden’s Student-Loan-Forgiveness Order

President Biden (left) and a protester stands in front of the Supreme Court building (right).(Kevin Lamarque, Nathan Howard/Reuters)
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By JEFF ZYMERI
June 30, 2023 10:46 AM
The Supreme Court on Friday struck down President Biden’s student-loan-forgiveness program, finding that the statute the administration relied on in issuing the executive order does not give the secretary of education sweeping authority to forgive billions in student loans for tens of millions of Americans.

In the first of two cases the Court ruled unanimously that the individual plaintiffs lacked the standing to sue because they failed to establish harm. But in the second case, the Court ruled 6-3 that the state of Missouri had standing to sue and convincingly argued that President Biden lacked the authority to forgive student loans for entire categories of borrowers under the HEROES Act.

The Court’s precedent “requires that Congress speak clearly before a department secretary can unilaterally alter large sections of the American economy,” Chief Justice John Roberts wrote for the majority.

“The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not,” Roberts goes on to write. “We hold today that the Act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.”

Roberts went on to cite a statement made by then-Speaker Nancy Pelosi (D., Calif.), who in 2021 insisted that President Biden could not exercise executive authority in the name of “debt forgiveness,” to bolster the majority opinion.

“People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress,” the California Democrat said during a press conference in July 2021.

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Writing for the dissent, Justice Elena Kagan argued that the Supreme Court had dramatically overstepped in its ruling. “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”

“From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent,” Kagan added in her concluding remarks.

She was joined by Justices Sonia Sotomayor and Kentanji Brown Jackson.

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In August of last year, the Biden administration announced an executive order that would cancel up to $20,000 in federal student-loan debt for those making less than $125,000 in income per year. The administration invoked the HEROES Act to justify the plan. It was the same statute that was invoked by former president Donald Trump’s education secretary, Betsey DeVos, to pause student-loan payments as well as the accrual of interest early in the pandemic.

The Biden administration has argued that the Education Department under Miguel Cardona acted within the bounds of the statute, which was passed in the wake of the September 11 attacks to ensure that Americans would not be financially worse off after their military service. The challengers have claimed that Congress did not give the executive branch the power to enact such a major debt-relief program, costing over $400 billion, and that there is little evidence that all recipients of student loans are in a worse financial position due to the pandemic.

The Supreme Court heard the two challenges in February. The program was challenged by a group of Republican states that argued that the cancellation exceeds the Department’s authority and was arbitrary and capricious, as more incremental relief was not considered. It was also challenged by two individuals — Myra Brown and Alexander Taylor. Brown was not eligible for relief because she held commercial loans and Taylor was not eligible for the full $20,000 because he was not a Pell Grant recipient. Had they been allowed to, Brown and Taylor would have submitted comments arguing for a more expansive plan. The Court found that Brown and Taylor lacked the standing to sue.

Whether the challengers had standing to sue was an important point of contention in both cases. In the former case, the six states lost on standing in district court. The Biden administration argued that the injury to the states was too speculative. In the latter case, the administration said the asserted injury is a complete mismatch to the relief sought: Brown and Taylor claim to want a more expansive plan, but also argue the HEROES Act doesn’t authorize the plan.

The Covid-19 pandemic ended in May and the Biden administration announced student-loan payments would resume after the summer, later codified in the debt-ceiling deal. The Department of Education confirmed that interest would start accruing in September and payments would resume in October.

[Crafty_Dog]

https://dailycaller.com/2023/07/08/gop-lawmakers-introduce-bills-to-disarm-federal-bureaucrats/?utm_source=piano&utm_medium=email&utm_campaign=29912&pnespid=rKg6FihKJfIYxOHCvzPrGJ_IvRLyS8NtLrGnmeVprxhmukHAgzEzp1Cmrnv3GYuyyIVfaGJK

[Crafty_Dog]

https://www.nationalreview.com/news/ted-cruz-lays-out-road-map-for-next-big-conservative-supreme-court-battle/?bypass_key=L1BaN3JIRzRNU1JsaXFoWDRraVo1Zz09OjpURTExVjNkR2RubHRXR2x0VkhNM1QyVmtkV3REUVQwOQ%3D%3D?utm_source%3Demail&utm_medium=breaking&utm_campaign=newstrack&utm_term=32048055&utm_source=Sailthru

[Crafty_Dog]

https://www.nationalreview.com/news/irs-to-end-most-unannounced-home-visits-reversing-decades-long-practice-after-alleged-abuses/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=32175938

[Crafty_Dog]

https://constitutioncenter.org/blog...l-agencies-with-their-supreme-court-challenge

[Crafty_Dog]

The EPA Defies the Supreme Court
The agency imposes a ‘suite’ of climate policies and doesn’t even try to hide its own lawlessness.
By Chris Horner
Aug. 17, 2023 6:41 pm ET

In politics, inadvertently telling the truth is called a “gaffe.” Last year Michael Regan, administrator of the Environmental Protection Agency, made a remark in passing that gave away the Biden administration’s plans for enforcing its climate agenda through a “suite of rules” imposed under programs lacking any credible connection to climate. A few months later, a Supreme Court opinion transformed Mr. Regan’s indiscretion into justification for wholesale judicial repudiation of the Biden administration’s climate regulatory blitz.

Mr. Regan’s comment came on March 10, 2022, when he addressed the press following his keynote address to CERAWeek, a climate conference in Houston. A reporter asked about vulnerabilities of the EPA’s approach to installing climate regulation through the Obama-Biden Clean Power Plan, which was then awaiting judgment by the court. Mr. Regan replied that the agency had abandoned the idea of relying on any specific grant of regulatory authority. Instead it was in the process of tightening rules under numerous and varied regulatory programs all at once, pressuring disfavored operations to close and compelling investment consistent with the EPA’s desires.

Mr. Regan went on to cite rules to tighten regulation of mercury, ozone, soot, hazardous air pollutants, water effluent and coal ash under acknowledged congressional grants of authority. But he also called the “expedited retirement” of power plants “the best tool for reducing greenhouse-gas emissions” and opined that the “industry gets to take a look at this suite of rules all at once and say, ‘Is it worth doubling down on investments in this current facility or operation, or should we look at the cost and say no, it’s time to pivot and invest in a clean-energy future?’ ”

This already reflected something of a scofflaw position. Congress never approved what Mr. Regan described. It became a serious problem when the justices struck down the Clean Power Plan in June. West Virginia v. EPA held that the agency didn’t have the authority it claimed to force power-plant closures by setting unmeetable emission standards and thus dictate, as the court had put it, “how Americans get their energy.”

Chief Justice John Roberts noted for the 6-3 majority that after Congress had repeatedly considered and rejected providing the agency authority to regulate power-sector greenhouse gases, the EPA claimed “to discover an unheralded power” that represented a “transformative expansion in [its] regulatory authority” to force “generation shifting.”

The court invoked the major-questions doctrine—a principle grounded in the separation of powers—which states that when a regulatory agency seeks to impose burdens of “economic and political significance,” there is “reason to hesitate.” If an agency can’t point to “clear congressional authorization,” the authority doesn’t exist.

Many climate activists took the lesson that they should stop bragging about clever regulatory approaches. Two weeks after West Virginia v. EPA came out, the Environmental Law Institute hosted a funereal webinar in which panelists warned about candid outbursts turning up in Supreme Court reversals, mentioning such statements as President Obama’s “if Congress won’t act soon . . . I will,” and Mr. Biden’s then-chief of staff Ron Klain’s tweeting about “the ultimate work-around” of constitutional limits to impose Covid vaccine mandates. Several panelists urged activists to be careful in their press releases and to not let appointees’ cheerleading “get out in front of the lawyers.”

That’s good advice, but the administration appears undeterred. Records obtained by policy groups I represent in Freedom of Information Act litigation show Mr. Biden’s EPA team came in with this plan to hit fossil generation with a barrage of disparate regulations as a climate strategy. One impressively prescient email sent the day after Mr. Biden’s election by law professor and soon-to-be Biden climate advisor Ann Carlson laid out the approach, even using the phrase “suite of climate policies.”

Two weeks into Mr. Biden’s term, a PowerPoint slide show—given by a lawyer named Joe Goffman, who is hailed in media profiles as the administration’s “law whisperer” because “his specialty is teaching old laws to do new tricks”—detailed a plan of tightening regulation on power plants by using solid waste, water and even visibility standards. The audience for his plan to blitz fossil power generation with these non-climate programs? The White House Climate Office. FOIA records also include activist correspondence to Mr. Goffman specifically urging the EPA to tighten “haze” rules as a back door for the climate agenda, which EPA appears to be doing.

Long-held plans are hard to let go. Despite the court’s rejection of each authority the administration has claimed so far to regulate greenhouse gases from power plants, one email written during the immediate post-West Virginia scramble refers to “EPA’s CAA toolbox” for “Power Sector GHG Reductions.” (The abbreviations stand for Clean Air Act and greenhouse gas.)

West Virginia v. EPA addressed power the agency claimed under a specific rule, but the opinion’s scope extends far beyond that rule. The justices flatly stated that trying to force the plant-closure agenda Mr. Regan described, for which the EPA can cite no statutory mandate, presents a “major question” requiring a clear congressional statement of authority.

Academics now call on Mr. Biden to ignore the Supreme Court. His EPA is doing so, while also ignoring Congress. It seems inevitable the court will confront this latest gambit to evade constitutional limits. As always, the question will be how much lasting harm the EPA can inflict before the courts act to stop it.

[Crafty_Dog]

https://www.theepochtimes.com/health/fda-is-not-a-physician-appeals-court-sides-with-doctors-on-ivermectin-for-covid-19-post-5485494?utm_source=Morningbrief&src_src=Morningbrief&utm_campaign=mb-2023-09-07&src_cmp=mb-2023-09-07&utm_medium=email&est=OhFm%2FXlOnW0OhVw%2BqS0I7z1eBasofYMWNDm6zbZeGZan8c9Ph8%2FSbWjyTQZNGsVfeRjd

[DougMacG]

https://amgreatness.com/2023/09/29/victor-davis-hanson-completely-clean-out-rogue-government-agencies/

[Crafty_Dog]

Glad to see Ramaswamy and VDH hammering this issue.

[Crafty_Dog]

NTY
Trump Has a Master Plan for Destroying the ‘Deep State’
Nov. 27, 2023, 5:01 a.m. ET
By Donald P. Moynihan
Mr. Moynihan is a professor of public policy at Georgetown and an expert on the administrative state.

Sign up for the Opinion Today newsletter  Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Get it sent to your inbox.
I study government bureaucracies. This is not normally a key political issue. Right now, it is, and everyone should be paying attention.

Donald Trump, the former president and current candidate, puts it in apocalyptic terms: “Either the deep state destroys America or we destroy the deep state.” This is not an empty threat. He has a real and plausible plan to utterly transform American government. It will undermine the quality of that government and it will threaten our democracy.

A second Trump administration would be very different from the first. Mr. Trump’s blueprint for amassing power has been developed by a constellation of conservative organizations that surround him, led by the Heritage Foundation and its Project 2025. This plan would elevate personal fealty to Mr. Trump as the central value in government employment, processes and institutions.

It has three major parts.

The first is to put Trump loyalists into appointment positions. Mr. Trump believed that “the resistance” to his presidency included his own appointees. Unlike in 2016, he now has a deep bench of loyalists. The Heritage Foundation and dozens of other Trump-aligned organizations are screening candidates to create 20,000 potential MAGA appointees. They will be placed in every agency across government, including the agencies responsible for protecting the environment, regulating workplace safety, collecting taxes, determining immigration policy, maintaining safety net programs, representing American interests overseas and ensuring the impartial rule of law.

These are not conservatives reluctantly serving Mr. Trump out of a sense of patriotic duty, but those enthusiastic about helping a twice-impeached president who tried to overturn the results of an election. An influx of appointees like this would come at a cost to the rest of us. Political science research that examines the effects of politicization on federal agencies shows that political appointees, especially inexperienced ones, are associated with lower performance in government and less responsiveness to the public and to Congress.

The second part of the Trump plan is to terrify career civil servants into submission. To do so, he would reimpose an executive order that he signed but never implemented at the end of his first administration. The Schedule F order would allow him to convert many of these officials into political appointees.

Schedule F would be the most profound change to the civil service system since its creation in 1883. Presidents can currently fill about 4,000 political appointment positions at the federal level. This already makes the United States an outlier among similar democracies, in terms of the degree of politicization of the government. The authors of Schedule F have suggested it would be used to turn another 50,000 officials — with deep experience of how to run every major federal program we rely on — into appointees. Other Republican presidential candidates have also pledged to use Schedule F aggressively. Ron DeSantis, for example, promised that as president he would “start slitting throats on Day 1.”

Schedule F would be a catastrophe for government performance. Merit-based government personnel systems perform better than more politicized bureaucracies. Under the first Trump administration, career officials were more likely to quit when sidelined by political appointees.

Schedule F would also damage democracy. The framers included a requirement, in the Constitution itself, that public officials swear an oath of loyalty to the Constitution, a reminder to public employees that their deepest loyalty is to something greater than whoever occupies the White House or Congress. By using Schedule F to demand personal loyalty, Mr. Trump would make it harder for them to keep that oath.


When he was president, his administration frequently targeted officials for abuse, denial of promotions or investigations for their perceived disloyalty. In a second administration, he would simply fire them. Trump loyalists reportedly have lists ready of civil servants who will be fired because they were not deemed cooperative enough during his first term.

The third part of Mr. Trump’s authoritarian blueprint is to create a legal framework that would allow him to use government resources to protect himself, attack his political enemies and force through his policy goals without congressional approval. Internal government lawyers can block illegal or unconstitutional actions. Reporters for The New York Times have uncovered a plan to place Trump loyalists in those key positions.

This is not about conservatism. Mr. Trump grew disillusioned with conservative Federalist Society lawyers, despite drawing on them to stock his judicial nominations. It is about finding lawyers willing to create a legal rationale for his authoritarian impulses. Examples from Mr. Trump’s time in office include Mark Paoletta, the former general counsel of the Office of Management and Budget, who approved Mr. Trump’s illegal withholding of aid to Ukraine. Or Jeffery Clark, who almost became Mr. Trump’s acting attorney general when his superiors refused to advance Mr. Trump’s false claims of election fraud.

Mr. Clark is now under indictment for a “criminal attempt to communicate false statements and writings” to Georgia state officials. But he continues to lay the groundwork for a second Trump term. He has made the case for the president using military forces for domestic law enforcement. He has also written a legal analysis arguing that “the U.S. Justice Department is not independent,” while Mr. Paoletta told The Times, “I believe a president doesn’t need to be so hands-off with the D.O.J.” If government lawyers will not defend norms of Justice Department independence, Mr. Trump will use the department to shield himself from legal accountability and to pursue his enemies.

We sometimes think of democracy as merely the act of voting. But the operation of government is also democracy in action, a measure of how well the social contract between the citizen and the state is being kept. When values like transparency, legality, honesty, due process, fealty to the Constitution and competence are threatened in government offices, so too is our democracy. These democratic values would be eviscerated if Mr. Trump returns to power with an army of loyalists applying novel legal theories and imposing a political code of silence on potential holdouts.

American bureaucracy is often slow and cumbersome. The civil service system in particular is in need of modernization. But it is also suffused with democratic checks that limit the abuse of centralized power. This is why Mr. Trump and his supporters are so precisely targeting the administrative state, taking advantage of an antipathy toward Washington that both parties have long nurtured. If Mr. Trump has a chance to implement his various plans, expect a weaker American government, worse public services and the dismantling of limits on presidential power.

[DougMacG]

Strange to read that an "expert" on the "administrative state" does not know that something has gone deeply and terribly wrong with it.

Does he not know about the whole Comey, McCabe, Stzruk Page affair?  The phony FISAs?  IRS targeting?  Vindman?  The pre-dawn, guns drawn raids of Presidential advisers?  He really doesn't know anything went wrong?  Nor do his readers?

Worse yet, he believes these career professionals are who should really govern us, not the elected figureheads who come and go.  They are better because they stay longer and acquire much more wisdom and power?  Constraining the power of the deep state "will undermine the quality of that government and it will threaten our democracy." 

Isn't it exactly the other way around??

He refers to the "twice-impeached president who tried to overturn the results of an election".  Does he mean the twice vindicated President who tried to challenge fraud but was thwarted with "lack of standing"?  Regarding the impeachments, they held a trial, you know, and the outcome was - not guilty, twice.

Heritage is a "trump-aligned" organization?  He's not really an expert on organizations of the right.  They were conservative before Trump bought his first property.

"Trump’s blueprint for amassing power" looks a little like the author expert never read the constitution and Supreme Court rulings that define the singular head of the "Executive Branch".

Not mentioned is that he's 77 and only eligible for one term.  Hardly a threat to rule us for life (and beyond).

One of Trumps advisers, "Mr. Clark is now under indictment for a “criminal attempt to communicate false statements and writings” to Georgia state officials. But he continues to lay the groundwork for a second Trump term."

No mention of innocent until proven guilty? 

"We sometimes think of democracy as merely the act of voting. But the operation of government is also democracy in action, a measure of how well the social contract between the citizen and the state is being kept."

The ability of the unelected officials to operate against the will of the elected officials and the people is a sign of a functioning democracy?  On what planet?

[Crafty_Dog]

https://washingtontimes-dc.newsmemory.com/?token=7acc226117746df4e552f734fabde0ad_6564afca_6d25b5f&selDate=20231127

[Crafty_Dog]

The Supreme Court Considers the Right to Trial by Jury
SEC v. Jarkesy could vindicate a legal protection against the administrative state that the Founders fought for.
By
The Editorial Board
Follow
Nov. 26, 2023 5:10 pm ET


The Supreme Court on Wednesday will hear the first of two landmark cases this term challenging the runaway administrative state. At stake in SEC v. Jarkesy is a bedrock constitutional principle that colonists fought to defend in the American revolution: the right to a trial by jury.



Congress in recent decades has expanded the enforcement powers of administrative agencies. The 2010 Dodd-Frank Act granted the Securities and Exchange Commission unbridled power to seek penalties administratively against any individual for violating securities laws. Democrats wanted to make it easier for the agency to punish misconduct.

Administrative tribunals let SEC prosecutors present hearsay evidence and unauthenticated documents that would be inadmissible in a traditional federal court. Defendants also enjoy fewer procedural protections including the tools of legal discovery. No surprise, then, that the SEC wins almost all cases it charges in-house. At the time of hedge-fund founder George Jarkesy’s administrative trial in 2014, the SEC had a 100% in-house victory rate versus 61% in federal court in 200 contested cases.

The SEC charged Mr. Jarkesy with securities fraud for allegedly inflating the value of fund assets, which the agency said allowed him to earn higher management fees. An administrative law judge (ALJ) ruled against Mr. Jarkesy. SEC commissioners upheld the ruling six years later, ordered him to pay a $300,000 penalty, and barred him from the industry.

Mr. Jarkesy appealed to the Fifth Circuit Court of Appeals, arguing that SEC tribunals violate his Seventh Amendment right to trial by jury. He also contended that multiple layers of for-cause tenure protections for ALJs from presidential removal offend the constitutional separation of powers. The Fifth Circuit ruled for Mr. Jarkesy on all counts.

In its High Court brief, the SEC argues the Seventh Amendment applies only when private—not public—rights are at stake. Earlier Court decisions have exempted claims from the right to a jury trial if they involve public rights such as government-granted benefits and privileges.

The SEC tries to muddy the public-private distinction by arguing that public rights are at stake whenever the government sues on behalf of the “public” to enforce laws. But as Mr. Jarkesy points out, the SEC is seeking to deprive him of a core right for a common-law offense that he allegedly committed against other private citizens.

The historical record supports his argument. Today’s administrative tribunals resemble those that the British government used to punish colonists and religious dissidents before the revolution. The British government used jury-less admiralty courts to impose civil penalties on colonists for violating the Sugar and Stamp Acts.

The Declaration of Independence cited the denial of “the benefits of trial by jury” as one of the colonists’ chief grievances. The Founders pushed to enshrine the right in the Constitution to prevent the new Congress from creating special forums to adjudicate civil penalties as Parliament and the King had done.

A jury trial in federal court ensures due process for defendants and protects against abuses of enforcement power. Underscoring this point, SEC enforcement staff were found in Mr. Jarkesy’s case and dozens of others to have improperly accessed privileged legal memos of agency lawyers involved in adjudicating their cases.

As for double removal protections for ALJs, the SEC says they are constitutionally permissible if deemed “best for the public interest.” But it proposes no limiting principle. ALJs can be fired only for “good cause” by a Merit Selection Review Board whose members can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” In Free Enterprise Fund (2010), the Court struck down a similar scheme that insulated members of the Public Company Accounting Oversight Board with two layers of tenure protection.

Progressives say a ruling for Mr. Jarkesy would gut the administrative state, which is what they always say. But the SEC and other federal agencies could continue to litigate cases in-house that involve truly public rights such as veterans benefits and asylum claims. But they would have to go to federal court to impose civil penalties for common-law offenses.

Restoring the originalist interpretation of the Seventh Amendment would strengthen safeguards against tyrannical government.

[Crafty_Dog]

Add the Federal Communications Commission to the gang of Biden regulators targeting Elon Musk. On Tuesday the agency invoked dubious grounds to scrap funding for his Starlink satellite service to expand high-speed internet to rural Americans.

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Three years ago the FCC awarded Starlink $885 million to provide high-speed internet service to some 640,000 rural homes and businesses in 35 states. Several traditional broadband providers also won awards. But Starlink has the potential to cover remote regions at lower cost because it doesn’t require building out hundreds of miles of fiber.

Americans in rural areas can stick a satellite dish on their home or business that connects with Starlink’s satellites in earth’s low orbit. Starlink has more than 5,420 satellites in orbit, which provide high-speed Internet in 14 European countries, and Ukraine has used Starlink terminals to defend against the Russians.

The FCC’s new 3-2 Democratic majority on Tuesday nonetheless revoked Starlink’s funding because it hasn’t met its commitment to connect 640,000 rural Americans two years ahead of schedule. Yet the law merely requires Starlink to show it is “reasonably capable” of providing high-speed internet to at least 40% of the roughly 640,000 rural premises by the end of 2025. Starlink filed voluminous documents with the agency in 2021 and 2022 demonstrating it could reach this benchmark. The FCC has never before required that a funding recipient meet its obligations years early.

Democratic commissioners simply ignored them. They claim the company isn’t making fast enough progress, though other funding recipients aren’t any further along. The Democratic majority justifies its disparate treatment of Starlink by claiming it is relying on an unproven technology. Ukraine’s Volodymyr Zelensky would surely disagree.

The FCC news release also claims that funding Starlink’s service “would not be the best use of limited Universal Service Fund dollars.” This is political misdirection. We wish the fund’s revenues were limited. But the FCC can raise more money by increasing charges on telecom carriers, an authority that is currently under legal challenge.

In any case, extending high-speed fiber to the rural areas that Starlink aims to serve would cost at least $3 billion, as GOP commissioner Brendan Carr notes in a dissent. The FCC’s decision “cannot be explained by any objective application of law, facts, or policy,” he writes, adding that it follows a disturbing pattern of Biden regulators targeting Mr. Musk’s businesses.

The Democrats may also be doing the bidding of the Communications Workers of America, which represents workers at traditional broadband providers. Starlink wouldn’t require large numbers of unionized workers to blanket rural areas with high-speed internet and could do so faster than traditional carriers.

It would be better policy if the government left the financing of broadband expansion to private companies. But if it’s going to pick winners and losers, it ought to do so based on objective criteria rather than political bias. The FCC’s arbitrary revocation of Starlink’s funding underscores that it is far from an “independent” agency, as Republican commissioner Nathan Simington writes in dissent.

“If this is what passes for due process and the rule of law at the FCC, then this agency ought not to be trusted with the adjudicatory powers Congress has granted it and the deference that the courts have given it,” he writes. Agency Chair Jessica Rosenworcel might ponder that as she politicizes the agency.

[Crafty_Dog]

Biden to Apprentices: You’re Fired
The Labor Department uses 776 pages to rewrite a two-page 1937 law, with a goal of limiting non-union worker training.
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Dec. 18, 2023 6:34 pm ET




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Want a classic example of the administrative state gone wild? Get a look at the Labor Department’s recently proposed 776-page rule that purports to clarify a two-page 1937 law regulating apprenticeship programs.

Employers across America complain about a shortage of skilled workers. DOL’s rule will make that worse by imposing onerous regulations on apprenticeships. The goal is to help labor unions and advance its policy of diversity, equity and inclusion, or DEI.

The 1937 National Apprenticeship Act was intended to prevent discrimination in worker training and stop employers from using apprentices as cheap labor. The law authorized DOL to establish “labor standards necessary to safeguard the welfare of apprentices” that “bring together employers and labor” and “cooperate with State agencies.”

Apprenticeships let workers acquire skills while earning a paycheck under the supervision of skilled workers. They are a common low-cost way for employers to train workers in trade occupations such as plumbing and construction. They can also serve as a worker pipeline for newer industries such as cyber-security and green manufacturing.

About half of apprenticeship programs are jointly run by labor and management, typically governed by collective-bargaining agreements. Yet unions accuse non-union employers of using apprenticeships “to find cheap labor,” as DOL puts it. Its proposed rule aims to make it harder and more expensive for employers to use non-union apprenticeships.

The rule would require that apprenticeship programs provide at least 2,000 hours of on-the-job training, though many can train workers in less time. Employers would have to provide “accessible” and “equitable” facilities for all workers—e.g., bathrooms that correspond to gender identity—and “personal protective equipment” that fits “according to each apprentice’s size and body type.”

Companies would also have to provide apprentices with the same “allowances, rights, and protections” as regular employees, including family leave and retirement benefits. White-collar interns aren’t typically entitled to the same fringe benefits as full-time workers, so why is DOL requiring employers with blue-collar trainees to do so?

DOL’s manifest goal is to limit non-union programs that don’t result in more union jobs. The rule would let the department dissolve programs accused by unions of misconduct or found to be non-compliant with minor government regulations and DEI benchmarks.

States would also have to provide “a detailed, actionable plan” for advancing DEI. As DOL notes, some states suggested it “should avoid adding to or changing the regulations” governing “equal employment opportunity” because existing administrative requirements were “too long, complicated, or burdensome.” But DOL disagreed.

One result of DOL’s regulations will be fewer job-training opportunities for minorities. The rule will also undercut the Administration’s industrial policy and climate agenda. The Inflation Reduction Act’s myriad green energy tax credits require employers to utilize apprentices from government-approved programs. Good luck finding them.

President Biden’s message to non-union apprentices: You’re fired.

[Crafty_Dog]

Elon Musk vs. the Administrative State
SpaceX fights an NLRB attack on the company’s employment practices.
By
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Jan. 8, 2024 6:16 pm ET


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SpaceX wants to colonize Mars, but first it’s taking on a more difficult mission: Rolling back the administrative state. CEO Elon Musk’s firm is challenging the structure and powers of the National Labor Relations Board.

A regional director at the NLRB last week charged SpaceX with retaliating against employees who wrote an open letter criticizing Mr. Musk. The complaint alleged that the company unfairly barred workers from discussing the letter and “created an impression of surveillance” by “showing employees screen shots of communications between employees.”

SpaceX responded with a lawsuit in federal court arguing that the board’s structure and administrative trials are unconstitutional. The suit leans in part on the Fifth Circuit Court of Appeals’s SEC v. Jarkesy precedent. The Supreme Court heard the Securities and Exchange Commission’s appeal in the case in November, and a decision is expected by June.

Jarkesy held that the SEC administrative law judges’ dual layers of protection from presidential removal violate the Constitution’s command that the President must “take Care that the Laws be faithfully executed.’” The Fifth Circuit also held that the SEC’s administrative process for adjudicating fraud claims violates the Seventh Amendment’s right to a jury trial.

Like SEC administrative law judges, the NLRB’s judges can only be removed for good cause as found by a Merit Systems Protection Board whose members can only be removed for “inefficiency, neglect of duty, or malfeasance in office.” Similar to the SEC, the NLRB asserts the power to extract monetary damages from defendants. SpaceX argues that such claims belong in federal court where defendants enjoy a right to a jury trial.

The SpaceX lawsuit also seeks to break new legal ground by taking aim at the NLRB’s combination of adjudicative, legislative and executive power, which it argues violates the constitutional separation of powers and due process. NLRB members rule on charges brought in its administrative courts and decide whether to seek injunctive relief in federal court.

Members of other independent agencies do the same, but SpaceX argues that the NLRB’s procedural unfairness is magnified because the board “has chosen to promulgate virtually all the legal rules in its field through adjudication rather than rulemaking.”

In other words, the board uses internal adjudications to write new labor law. When a party appeals a board decision in federal court, the NLRB then claims that its interpretations of labor law based on its precedents and fact finding deserve judicial deference. Imagine a district attorney writing the law and hearing cases that it prosecutes under that law.

The “accumulation of all powers legislative, executive and judiciary, in the same hands” is “the very definition of tyranny,” SpaceX writes, citing James Madison’s Federalist No. 47. Congress has granted the NLRB and other independent agencies sweeping powers that would have made the founders blanch. But the agencies have also expanded their purview.

The Biden NLRB is a case in point. The board’s statutory mission is to protect workers’ right to organize, but it is rewriting labor law to limit employer rights to manage their workforces. Credit to SpaceX for firing a rocket at the administrative state.

[Crafty_Dog]

https://www.theepochtimes.com/health/government-raid-of-amish-farm-an-attempt-to-criminalize-independence-independent-farmer-5560929?utm_source=Health&src_src=Health&utm_campaign=health-2024-01-10&src_cmp=health-2024-01-10&utm_medium=email&est=30o1Vvc7Q8UM6lOxV6ntapoOtecnhLMh7Qs2fSk3AHD31IMbWxsGKDYaBMh4EsD3pflY

[Crafty_Dog]

https://amgreatness.com/2024/01/15/faa-pushes-to-hire-people-with-severe-intellectual-psychiatric-disabilities-in-the-name-of-diversity/

[Crafty_Dog]

Federal Contracting Is the Next DEI Target
Companies are required to meet strict hiring ‘goals’ that would be illegal anywhere else.
By Michael Toth
Jan. 15, 2024 4:30 pm ET

Some 3,000 demonstrators march to protest the lack of black men working in the construction industry in Pittsburgh, Pa., Sept. 15, 1969. PHOTO: ASSOCIATED PRESS

Critics of diversity, equity and inclusion policies scored an important victory with last year’s Supreme Court decision in Students for Fair Admissions v. Harvard, and a symbolic one with Claudine Gay’s resignation as Harvard’s president. But while some universities and businesses have pivoted from DEI to get in line with the high court’s ruling, Washington’s diversity-industrial complex marches on. It’s time for the federal government to play by the same antidiscrimination rules private companies have to follow.

Federal affirmative-action programs originated in the Nixon administration. In 1969 Labor Secretary George Shultz launched the Philadelphia Plan, which required companies bidding for federal construction projects in that city to commit to minority hiring goals. Within a year of announcing the plan, the administration extended it to cover all federal agencies. Fifty-five years later, those rules are still in place.

Federal regulations require prime contractors or subcontractors “with 50 or more employees and a contract of $50,000 or more” to submit “a written affirmative action program” for each of their locations. The rules dictate that a contractor’s workforce should “reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects.” Employing less than 80% of the local share of “any race, sex, or ethnic group” is categorized as an “adverse impact.” Failure to comply with these federal diversity mandates could mean the cancellation of existing contracts, and violators could be barred from doing future business with the federal government. It’s safest to hire by the numbers.

Since the Nixon administration, the federal government has successfully argued that Executive Order 11246, which President Lyndon Johnson signed in 1965, gives it authority to use race-based affirmative action in awarding contracts. The order requires contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race.” In 1971, a federal appeals court upheld the Philadelphia Plan on the grounds that the executive order releases the executive branch from the “general prohibition against discrimination” found in the Civil Rights Act.

Putting aside whether that court got it right in 1971, the federal government’s race-based contracting rules can be undone through the same process through which they were promulgated. It takes two steps. First, the next president should amend the order and remove the basis for federal government regulations that push contractors to pursue diversity hires.

The updated order should quote President John F. Kennedy, who first inserted the “affirmative action” requirement into a 1961 executive order but didn’t intend the mandate to lead to racial preferences or quotas, which he opposed. “We are too mixed, this society of ours,” Kennedy said at a 1963 press conference, “to begin to divide ourselves on the basis of race or color.”

Second, the president should instruct the labor secretary to comb through existing rules issued under the order and rescind any that push racial quotas. The demands for written affirmative-action plans should be scrapped. So should the federal contracting rules that circumvent equal-opportunity requirements through work-arounds such as the Philadelphia Plan’s disingenuous quota-goal distinction. As Chief Justice John Roberts put it in Fair Admissions: “What cannot be done directly cannot be done indirectly. . . . The prohibition against racial discrimination is leveled at the thing, not the name.”

DEI foes are hungry for their next fight. They should look no further than the federal government’s affirmative-action programs. They might change for the better the way federal contractors do business.

Mr. Toth is an attorney in Austin, Texas

[Crafty_Dog]

Vivek spoke passionately and well on this subject:

The Case for the Supreme Court to Overturn Chevron Deference
A 40-year-old judicial doctrine has become a license for regulators to grab power from Congress.
By
The Editorial Board
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Jan. 15, 2024 6:41 pm ET


The Supreme Court has been trying to restore the proper constitutional balance of power, and its next opportunity comes Wednesday when it hears two cases challenging its own landmark Chevron doctrine (Loper Bright Enterprises, Inc., v. Raimondo and Relentless, Inc. v. Dept. of Commerce).

In 1984 in Chevron v. NRDC, the Justices ruled that courts should defer to administrative agencies’ interpretation of laws when the statutory text is silent or ambiguous. In practice this has become a license for Congress to write vague laws that delegate legislative power to administrative agencies. Over the last 40 years the federal register of regulations has grown by tens of thousands of pages.

Wednesday’s cases are textbook examples of how regulators invoke Chevron to expand their power and impose enormous burdens on Americans. Family-owned herring fisheries and vessel operators are challenging an obscure Commerce rule that requires New England fisheries to pay for on-board monitors.

The 1976 Magnuson-Stevens Act regulates fishery management in federal waters and permits the National Marine Fisheries Service (NMFS) to require vessels to “carry” federal observers to enforce its regulations. But only in three narrow circumstances does the law require vessels to pay for their federal monitors—none of which apply to the plaintiffs.

Congress declined to appropriate funds to pay for on-board monitors to enforce fishing regulations, so NMFS in 2020 decided to compel the fisheries to foot the cost. The agency estimated that a monitor would cost fisheries $710 a day and reduce annual financial returns by about 20%.

Two appellate courts ruled for the agency based on a two-step Chevron analysis. Courts first review if a law is clear. If the text is ambiguous or silent on a matter, courts must consider if an agency’s interpretation is reasonable. If judges rule it is, they must defer to the agency.

A First Circuit Court of Appeals panel upheld the fisheries rule because the “default norm” is “the government does not reimburse regulated entities for the cost of complying with properly enacted regulations.” A divided D.C. Circuit panel found the law was somewhat ambiguous, but the agency’s interpretation was reasonable.

But as D.C. Circuit Judge Justin Walker noted in dissent, “Congress unambiguously did not” authorize NMFS’s mandate. The agency “identified no other context in which an agency, without express direction from Congress, requires an industry to fund its inspection regime,” and the government’s theory could “undermine Congress’s power of the purse.”

Chevron arose when judges were willy-nilly substituting their policy preferences for those of the elected branch. But the doctrine has no constitutional basis, and it defies the Administrative Procedure Act, which requires that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”

As the fisheries argue, the doctrine also violates the Constitution’s Due Process Clause “by requiring courts to systematically place a thumb on the scale against the citizenry.” While agencies’ purely factual findings may deserve judicial deference, requiring courts to defer to regulators on the law undermines the separation of powers.

The late Justice Antonin Scalia supported Chevron after he joined the Court, but he later expressed misgivings as judges bowed to regulators even when they were stretching or rewriting the law. One result has been pendulum swings in public policy with every new presidential administration as agencies reinterpret laws to advance their agenda.

***
The current Supreme Court has danced around Chevron for several terms. In 2022 it overruled a D.C. Circuit decision that upheld a hospital drug payment rule under Chevron but declined to overturn the precedent.

The Court has relied instead on its major questions doctrine to strike down such executive overreach as the Biden student loan forgiveness. But why should federal agencies benefit from a lower standard of judicial review for regulations that judges deem minor but which are enormously consequential for particular parties?

The Justice Department invokes stare decisis for preserving Chevron. But stare decisis carries less weight when the Court is reviewing judge-made interpretive methods than it does in other kinds of cases. Overturning Chevron is an important act of judicial housecleaning that would rein in the administrative state and encourage Congress to write clear laws.

[Crafty_Dog]

Congress and Chevron Deference
The judicial doctrine has made it easy to abdicate power to bureaucrats.
By The Editorial Board
Jan. 17, 2024 6:38 pm ET



Judging by the left’s reaction, the Supreme Court’s oral arguments on Wednesday in two cases challenging the doctrine of Chevron deference didn’t go well for the government. “Disturbing oral arguments suggest dark turn for Supreme Court,” moaned the Alliance for Justice. Progressives are disturbed that the Justices might make Congress do its job.


Wednesday’s cases (Relentless v. Dept. of Commerce, and Loper Bright Enterprises v. Raimondo) concern a regulation issued by the Trump Administration. Commerce contends that the government can force herring fisheries to pay for on-board federal monitors because federal law is silent on the matter. Lower courts agreed based on the Court’s Chevron doctrine, which requires judges to defer to regulators when the text is ambiguous as long as their interpretation of the law is reasonable.

Justice Elena Kagan said it’s up to Congress to overturn Chevron. But as fisheries’ attorney Paul Clement rightly rejoined: “I’m not sure everybody in Congress wants to overrule Chevron . . . It’s really convenient for some members of Congress not to have to tackle the hard questions and to rely on their friends in the executive branch to get them everything they want.”

He added that even if Congress were to pass a law overturning Chevron, “the President would veto it.” In any event, he said, Chevron wrongly “assumes that ambiguity is always a delegation” to the executive branch. More often, ambiguity is “‘I don’t have enough votes in Congress to make it clear, so I’m going to leave it ambiguous . . . and then we’ll give it to my friends in the agency.’”

By allowing Congress to pass off responsibility to regulators, Chevron has contributed to legislative dysfunction and gridlock. Congress has failed to pass a law regulating crypto-currency after the FTX fiasco, Mr. Clement said, “because there’s an agency head out there that thinks that he already has the authority to address this uniquely 21st century problem with a couple of statutes passed in the 1930s.”

Perhaps he means Securities and Exchange Chairman Gary Gensler. “And he’s going to wave his wand, and he’s going to say the words ‘investment contract’ are ambiguous,” Mr. Clement said. Or consider that the Federal Communications Commission has rewritten broadband regulation four times in 14 years.

It’s not too much to say Chevron has corrupted all three branches of government. It lets Congress abdicate its duty to write clear laws, the bureaucracy to grab more power, and the courts to abandon their normal method of judicial review. Time for the High Court to restore constitutional equilibrium.

[Crafty_Dog]

This would appear to be a BFD!

https://www.youtube.com/watch?v=YcSPEk0WHz4

[Crafty_Dog]

https://www.americanthinker.com/blog/2024/03/two_steps_to_heaven.html

[Crafty_Dog]

(2) FEDERAL JUDGE SAYS DOJ ADMIN COURTS UNCONSTITUTIONAL: Federal District Judge J. Randall Hall ruled Department of Justice (DOJ) administrative law judges assess penalties and forfeitures against private parties on behalf of the government without Congressional supervision required by Article II of the U.S. Constitution.

Why It Matters: More than three dozen federal agencies and cabinet departments use administrative law judges and their own appeals system, which operates effectively as a shadow court system against people and companies targeted by federal agencies. These individuals and companies must make it through these courts before getting their case to a state or federal court. The Supreme Court decision on SEC v. Jarkesy and cases that could strike down Chevron Deference are still pending. However, the Supreme Court signaled in previous cases that it is interested in curtailing what some legal scholars say is unconstitutional overreach by federal agencies. – R.C.

[Crafty_Dog]

(1) BIDEN’S SOLUTION TO MED SHORTAGE WILL INCREASE COSTS: White House advisor Neera Tanden said the Biden administration is pushing Congress to establish a Manufacturing Resiliency Assessment Program and a Hospital Resilient Supply Program.
According to the proposed plan, these programs would allow the federal government to reward hospitals that purchase medicines from reliable, diverse suppliers and punish hospitals that do not.
Why It Matters: The Biden administration plan does not address the nature of the shortage, which is U.S. reliance on foreign labs and supply chains for key medicines and precursors. This plan, which penalizes hospitals for purchasing from the most prevalent and low-cost sources, will likely raise costs for Americans. – R.C.

[Crafty_Dog]

(1) BIDEN LOCKS IN SCHEDULE F BLOCK AGAINST TRUMP: The Office of Personnel Management (OPM) released a final rule yesterday intended to block a potential Trump administration from reclassifying civil service employees into a new job schedule with fewer protections.

A Biden official said a future administration would not be able to change the rule through executive action but would have to follow the same public rule-making process.

Why It Matters: Blocking the reimplementation of Schedule F is a priority for the Biden White House and Democratic Party. Reclassifying federal civil service employees into Schedule F, as the Trump administration attempted to do, would return federal executive branch employees under the more direct control of the White House. The federal civil service has become a de facto independent branch of government, and immunity from being fired has allowed federal agencies to undermine the previous Trump administration without consequence. – R.C.

[ccp]

Would Biden do this if most government employees (at least the DCers) were Rs?   !

[Body-by-Guinness]

He Lied:

WSJ Editorial

The Internal Revenue Service got an audit of its own in time for Tax Day, and two irregularities jump out. President Biden’s plan to hire a new army of tax collectors is falling flat, and the agents already at work are targeting the middle class.

Those are two findings of the IRS’s watchdog, the Treasury Inspector General for Tax Administration (Tigta). The report examines IRS progress on mandates from the Biden Administration backed by tens of billions in new funding. The first supposed goal was to audit more ultrawealthy and fewer middle-class filers, but it’s not going so well.

By last December the IRS decided that it wouldn’t begin tracking its progress until later this year. That’s because the agency has been slow to shift its focus to high-income taxpayers, who make up a small share of total filings. Its April 2023 strategic plan pledged that future audits would disproportionately target individuals making at least $400,000, but “did not include specifics on how the IRS was going to ensure it met this commitment,” says Tigta.

The most recent data suggests the IRS is still focused on the middle class. As of last summer, 63% of new audits targeted taxpayers with income of less than $200,000. Only a small overall share reached the very highest earners, while 80% of audits covered filers earning less than $1 million. Don’t forget to save those charitable-giving receipts.

Sluggish hiring might explain the slow shift. To its credit, the IRS never claimed it would decrease its middle-class audits, only that audits on higher-earners would become a majority. A fleet of new agents were supposed to turn their sights on rich tax dodgers. But apparently the job is in scarce demand.

Tigta reports that revenue-agent recruitment is “far below” the agency’s target, and it hired only 34 in the first six months of its expansion, according to trade publication Government Executive. That compares with its goal of 3,700 in the first year.

The agency faces the same tight labor market as any other employer, but the job specs aren’t bad. A typical salary for these agents is about $125,000, plus public-employee perks such as up to $60,000 in student-loan forgiveness. But for one reason or another, America’s treasurers and accountants aren’t lining up to become federal tax collectors.

All of this should encourage the House Republicans working to claw back more of the $80 billion that Democrats funneled to the IRS. For all that new money, Congress is so far getting the same old agency.

https://apple.news/AZVbhdOdHTwqFZfj2nmqUUg

[Crafty_Dog]

https://theupheaval.substack.com/p/democracy-means-never-having-to-hear?utm_source=post-email-title&publication_id=330796&post_id=143418794&utm_campaign=email-post-title&isFreemail=true&r=z2120&triedRedirect=true&utm_medium=email

[Crafty_Dog]

https://www.msn.com/en-us/news/world/moldova-clamps-down-after-russian-moves/ar-AA1nzurh?ocid=msedgntp&pc=DCTS&cvid=55859edb1f804e48ac6a23f8bcbd9aeb&ei=2

https://twitter.com/susancrabtree/status/1783223394974278143

[Crafty_Dog]

https://amgreatness.com/2024/04/26/secret-service-scuffle-prompts-dei-vetting-scrutiny/

Secret Service Scuffle Prompts DEI, Vetting Scrutiny
Secret Service agents and officers are privately questioning the hiring process and whether the agency had adequately screened Herczeg’s background.

By Susan Crabtree

April 26, 2024
An incident involving a physical attack by a female Secret Service agent tasked with protecting Vice President Kamala Harris is raising questions about whether the agency had thoroughly vetted her during her hiring and whether an ongoing push to increase the numbers of women in the service and boost overall workforce staff played a role in her selection. 

The Secret Service agent assigned to Vice President Kamala Harris was removed from her duties Wednesday after physically attacking the commanding agent in charge and other agents trying to subdue her, according to an agency spokesman and knowledgeable Secret Service sources.

Several sources in the Secret Service community identified the agent who physically attacked her superior as Michelle Herczeg. The altercation occurred at approximately 9 a.m. at Joint Base Andrews, the home base for Air Force One and Air Force Two, the call signs of the Boeing aircraft used by the president and vice president. Harris was at the U.S. Naval Observatory at the time of the incident, and it did not delay her travel, said agency spokesman Anthony Guglielmi.

Herczeg showed up at the terminal and began acting erratically, grabbing another senior agent’s personal phone and deleting applications on it, according to two sources familiar with the matter. The other agent, a shift leader, was able to recover his phone and then acted as if nothing had happened.

But Herczeg’s bizarre behavior didn’t stop. She then began mumbling to herself, hid behind curtains, and started throwing items, including menstrual pads, at an agent, telling him that he would need them later to save another agent and telling her peers that they were “going to burn in hell and needed to listen to God,” a source told RealClearPolitics.

Herczeg also screamed at the special agent in charge (SAIC), rattling off the names of female officers on the vice president’s detail and claiming they would show up and help her and allow her to continue working. At that point, other agents on the scene believed Herczeg was suffering from a mental lapse, and the superior officer, SAIC, approached her to tell her she was relieved from the assignment.

“That’s when she snapped entirely,” one source recounted.

Herczeg then chest-bumped and shoved her superior, then tackled him and punched him. The agents involved in restraining Herczeg were especially concerned because she still had her gun in the holster. They wrestled her to the ground, took the gun from her, cuffed her, and then removed her from the terminal.

The agent was immediately “removed from their assignment,” a Secret Service spokesman told RCP in a statement. The Washington Examiner first reported the incident.

“A U.S. Secret Service special agent supporting the Vice President’s departure from Joint Base Andrews began displaying behavior their colleagues found distressing,” said Guglielmi, chief of communications for U.S. Secret Service.

The agents on the scene then called medical personnel to remove Herczeg from the terminal. Guglielmi has described the incident as a “medical matter” and said the agency would not “disclose further details.”

“The U.S. Secret Service takes the safety and health of our employees very seriously,” he added. But the bizarre scuffle is once against raising concerns about the state of the once-vaunted force charged with protecting the president.

Following the incident, Secret Service agents and officers are privately questioning the hiring process and whether the agency had adequately screened Herczeg’s background. Some also wonder whether her hire was part of a diversity, equity, and inclusion push in response to years of staff shortages that may have required the agency to lower its once-strict employment standards and physical performance to reach quotas for female agents and officers.

In 2016, Herczeg, then an officer with the Dallas police force, filed a gender discrimination lawsuit against the city, claiming she was assaulted by a male superior and asking for more than $1 million in damages.

The suit alleged that Herczeg was “targeted for being a female officer and treated less favorably” and was retaliated against after she reported sexual harassment and illegal actions of other officers. She also claimed she was not allowed to return to a crime-reduction team after she alleged a senior officer assaulted her. A Texas trial court dismissed the suit, Herczeg appealed, and a Texas court of appeals affirmed the lower court’s decision in 2021 and denied a rehearing in 2022.

While serving on the Dallas police force, Herczeg and another officer shot an armed man while he sat in a parked car. . According to a department spokesman, the officers were firing in self defense because the man, who had previously been convicted of sexually assaulting a child, was brandishing a weapon and eventually shot himself in the head. A headline in the Dallas Observer raised some doubt about the official police account: “Two Dallas Cops Shot a Man Last Night, but They Say He Killed Himself.”

Ronald Kessler, a former investigative reporter for the Washington Post who has written several books on the Secret Service said the agency would have traditionally viewed the dismissed discrimination lawsuit as disqualifying.

“Yes, that should have been enough to exclude her, because you really have to have a pristine record,” he told RCP Wednesday. “Certainly, this has been true in the past. There’s tremendous competition, and she never should have been hired.”

Kessler also pointed to a new initiative to increase the number of women in the Secret Service workforce. Guglielmi confirmed that the agency is one of numerous federal, state, and local law enforcement agencies that have signed onto the 30×30 initiative, an effort to increase the representation of women in all ranks of policing across the country to 30% of the workforce by 2030.

“Claims that the Secret Service’s standards have been lowered as a result of our signing this pledge are categorically false,” Guglielmi told RCP. According to the initiative’s website, women currently make up only 12% of sworn officers and 3% of police leadership in the U.S., a low statistic that 30×30 advocates says “undermines public safety.”

“Research shows that women officers use less force and less excessive force; are named in fewer complaints and lawsuits; are perceived by communities as being more honest and compassionate, see better outcomes for crime victims, especially in sexual assault cases, and make fewer arrests,” the website states.

“It is critical that participating agencies focus on increasing the representation of all women,” the website adds. “They must account for the diverse experiences of all women of all backgrounds and life experiences to better promote the creation of a diverse and inclusive workplace for everyone.”

The Secret Service has an “Inclusion and Engagement Council,” which pledges to become the agency’s “game-changers” when it comes to helping the agency “build, foster, create and inspire a workforce where diversity and inclusion are not just ‘talked about’ but demonstrated by all employees through ‘Every Action, Every Day.’”

During President Obama’s time in office, the Secret Service experienced a string of scandals and several changes in leadership, including the appointment of its first female director, Julia Pierson. Obama appointed Pierson in March 2013 in an attempt to change the culture of the agency, which was then under scrutiny after a Colombian prostitution scandal. But Pierson lasted less than two years on the job when she resigned in the face of multiple revelations about drunken behavior and security breaches, including one in which Obama had shared an elevator in Atlanta with an armed guard who was not authorized to be around him.

In 2014, a blue-ribbon panel convened at the height of several scandals, and several members of Congress urged Obama to tap an “outsider” to head the agency, a recommendation he ignored. There were complaints that only a new director unconnected to the current and former leadership could truly change the insular culture and uneven discipline partially responsible for low morale and a mass exodus of agents and uniformed division officers fleeing the agency.

In August 2022, President Biden appointed Kimberly Cheatle, a 27-year veteran of the agency, as the director and only the second woman to lead it. She replaced James Murray, a Trump appointee, who announced his retirement after three years on the job. During the Trump administration, the agency faced its own set of controversies, including missing text messages to and from agents around the time of the Jan. 6, 2021, attack on the Capitol.

In recent years, the Secret Service has ranked either dead last or near the bottom of a government employee survey of job satisfaction conducted annually by the nonpartisan Partnership for Public Service. The agency’s most recent ranking for 2023 is near the bottom at No. 375 out of 432 agencies.

Those morale problems, tied to agents’ and officers’ crushing workloads – long hours amid increased security demands from the White House and in protecting presidential candidates in recent years – have led to lagging employment and poor retention rates.

Gary Byrne, a former Uniformed Division officer who wrote a book about his experiences protecting President Clinton, said there have been plenty of exceptions to usual Secret Service standards in the agency’s hiring practices, including numerous incidents of nepotism.

Byrne remembered a push for more female agents during the Clinton administration and one female Secret Service officer telling him that she was never required to take a polygraph before she was hired, which is a requirement for all officers and agent applicants.

“They tell you if you have character issues or mental-stability issues, you can’t take the job, they’ll find out about it,” he said, though many times mental health issues have remained hidden until they surface under stress.

“If you have any instability issues at all, this job will expose them,” he said.

[Crafty_Dog]

https://amgreatness.com/2024/05/07/report-biden-white-house-trying-to-force-new-regulations-to-hinder-second-trump-presidency/

[Crafty_Dog]

https://amgreatness.com/2024/05/07/matt-gaetz-cries-foul-after-federal-bureau-of-prisons-denies-his-request-to-interview-former-trump-advisor-peter-navarro/

[Crafty_Dog]

https://www.msn.com/en-us/news/politics/supreme-court-delivers-victory-for-the-administrative-state-with-surprise-7-2-ruling/ss-BB1mROsV?ocid=msedgntp&pc=DCTS&cvid=d01d4a0a1ef344fca3d7c2817e2db0f3&ei=4

[Crafty_Dog]

Vivek Ramaswamy seems well suited for this mighty struggle:

===========

FO

(1) DEMOCRATS PLAN ANTI PROJECT 2025 TASK FORCE: Rep. Jared Huffman (D-CA) announced that House Democrats will form a legislative task force to oppose the Heritage Foundation’s Project 2025, adding that Democrats “need a coordinated strategy to save America and stop this coup before it’s too late.”

The task force will include Reps. Ted Lieu (D-CA), Jamie Raskin (D-MD), and Pramila Jayapal (D-WA). It will also work with liberal groups to coordinate messaging and legislative strategy among the Democratic Caucus.

Why It Matters: Project 2025 outlines sweeping changes to federal agencies and plans to put thousands of political appointees and lawyers into agency counsel offices. The administrative state sees Project 2025 and Trump policies like Schedule F, as a threat to their institutional power and are likely to increase efforts to undermine a possible Trump administration. – R.C.

[Crafty_Dog]

(2) WALL STREET JOINS POLITICAL “GREAT SORTING”: Since Biden took office, Wall Street firms incorporated more trade groups in Texas to gain access to the 5th Circuit Court for lawsuits against the Securities and Exchange Commission (SEC).

According to a study by Harvard Law School professor John Coates, Wall Street firms’ lawsuits against SEC rules in the 5th Circuit Court have tripled since the beginning of the Biden administration.

Why It Matters: The opening of the Texas Stock Exchange backed by Wall Street giants, Texas standing up a new business court, and the growth of finance trade groups in Texas are likely an indicator that Texas and the South are a growing center of gravity for U.S. finance. This is likely related to the growing coalition of finance and tech investors backing former President Trump’s campaign. Economic elites say the Biden administration and blue-state policies introduce more economic and political instability, and this trend is likely to continue even if Trump wins in November. – R.C.

[Crafty_Dog]

(2) DOJ LAWYERS BEGIN UNIONIZATION EFFORT TO COUNTER TRUMP: Environment and Natural Resources Division (ENRD) lawyers at the Department of Justice (DOJ) are gathering signatures for a campaign to form the first DOJ lawyer’s union, with a union vote scheduled for October.

An ENRD organizing committee member said DOJ lawyers are concerned their jobs will become politicized, and a former ENRD official said there is clear alarm in the division over former President Trump’s possible return to the White House.

Why It Matters: This unionization effort is part of a larger effort to fortify federal agencies and the executive branch against a future Trump administration. Additionally, the ENRD handles litigation for environmental regulations, and this union effort is likely an attempt to block Trump from clearing out the ENRD if they oppose Trump’s effort to reverse Biden EPA rules that are set to cause energy shortages. – R.C.

[ccp]

 

[Crafty_Dog]

https://www.msn.com/en-us/news/us/the-supreme-court-just-lit-a-match-and-tossed-it-into-dozens-of-federal-agencies/ar-BB1p0WD1?ocid=msedgntp&pc=DCTS&cvid=45d74eea1245463b97b6343297e3ff0b&ei=10

Surprising to see such legal literacy out of MSN!  Of oourse we have not yet heard the other side  , , ,

The Supreme Court just lit a match and tossed it into dozens of federal agencies
Story by Ian Millhiser • 2h • 6 min read


On Thursday, the Court handed down a 6-3 decision, on a party-line vote, that could render a simply astonishing array of federal laws unenforceable. As Justice Sonia Sotomayor writes in dissent, “the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.”


The dispute in Securities and Exchange Commission v. Jarkesy turns on whether a hedge fund manager accused of defrauding investors is entitled to a jury trial to determine whether he violated federal securities law, or whether the government acted properly when it tried him before an official known as an “administrative law judge” (ALJ).

The charges against this hedge fund manager, George Jarkesy, are civil and not criminal, which matters because the Constitution treats civil trials very differently from criminal proceedings. While the Sixth Amendment provides that “in all criminal prosecutions” the defendant is entitled to a jury trial, the Seventh Amendment provides a more limited jury trial right, requiring them “in suits at common law” (more on what that means later).
If the question of whether Jarkesy is entitled to a jury trial arose in the absence of any precedent, then he’d have a reasonably strong case that he should prevail. But, as Sotomayor lays out in her dissent, nearly 170 years of precedent cut against Jarkesy’s position.


Congress, moreover, has enacted a wide range of laws on the presumption that many enforcement proceedings may be brought before administrative law judges and not juries. According to one somewhat dated review of federal law cited by Sotomayor, “by 1986, there were over 200” federal statutes calling for trials before ALJs.

Some of these laws, including the one allowing the SEC to bring enforcement actions against people like Jarkesy, give the government a choice. That is, they allow federal agencies to bring a proceeding either before an ALJ or before a federal district court that may conduct a jury trial. So the SEC, at least, has the option of retrying Jarkesy in a district court.

But, as Sotomayor warns, many federal agencies — including the “Occupational Safety and Health Review Commission, the Federal Energy Regulatory Commission, the Federal Mine Safety and Health Review Commission, the Department of Agriculture, and many others” — may only seek civil penalties in administrative proceedings. That means that a wide array of laws guaranteeing workplace safety and advancing other important federal goals could cease to function after Jarkesy.


The Jarkesy case, in other words, is an example of the Roberts Court at its most arrogant. Were the Court tasked with resolving the dispute on a blank slate, then there are entirely plausible arguments that Mr. Jarkesy should be entitled to a jury trial. But that ship sailed many years ago, and the federal government has operated for an exceedingly long time on the assumption that many disputes can be adjudicated by ALJs.

By upending this longstanding assumption, the Court may have just thrown huge swaths of the federal government — particularly enforcement by those agencies Sotomayor listed — into chaos.

So when does a civil defendant have a right to a jury trial?
The Seventh Amendment provides that civil litigants generally have a right to a jury trial “in suits at common law,” but what does that mean?

Broadly speaking, the common law refers to the body of judge-made law developed by English courts, much of which was imported into American law and which still governs many American lawsuits involving matters such as contracts and torts. Common law courts typically had the power to award money damages to a victorious plaintiff, which distinguishes them from courts of “equity” that had the power to issue injunctions and other non-monetary relief.

Chief Justice John Roberts’s majority opinion in Jarkesy leans heavily into the kind of remedy available to the SEC if it prevails in a suit before an ALJ. Like a suit before a common law court, the SEC sought monetary damages from Jarkesy, and thus this case resembles a suit at common law in that way. As Roberts writes, “money damages are the prototypical common law remedy.”

Additionally, Roberts notes that common law courts also historically had the power to hear suits alleging fraud. Thus, the suit against Jarkesy resembles a common law suit in that way as well.

Most of this part of Roberts’s opinion is uncontroversial. His disagreement with Sotomayor turns on a longstanding exception to the jury trial right known as the “public rights” doctrine.

The term “common law” refers to judge-created law developed over the course of many centuries, as distinct from law created by acts of a state legislature or Congress. The somewhat unhelpfully named public rights doctrine provides that many lawsuits that arise under federal statutes are not subject to the Seventh Amendment, and thus the government is free to try these cases in an administrative proceeding without a jury.

The earliest Supreme Court case applying this public rights doctrine was handed down in 1856, so it isn’t exactly an idea invented by 20th-century Progressive Era reformers who wanted to eliminate barriers to law enforcement. As the Court explained in Atlas Roofing v. OSHA (1977), the doctrine applies when Congress passes a law authorizing suits by the federal government that are “unknown to the common law.”

In “cases in which the Government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact,” Atlas Roofing held, “the Seventh Amendment does not prohibit Congress from assigning the factfinding function and initial adjudication to an administrative forum with which the jury would be incompatible.”

Thus, this public rights doctrine does have limits. It applies only to suits brought by the federal government, and only when the government sues to enforce a federal statute authorizing a kind of suit that did not already exist under the common law. But, in those circumstances, trial before an ALJ is permitted.

Though Roberts’s opinion denies that it overrules Atlas Roofing and similar cases, he speaks of that decision in disparaging terms. And his opinion places such an extraordinary amount of weight on the fact that the SEC sought money damages against Mr. Jarkesy that it is unclear how much, if any, of the public rights doctrine remains.

Were this the first time that such an issue came up, that might not be that big of a deal. Had Congress known a century ago that the Supreme Court would someday eliminate its ability to assign certain cases to ALJs, it could have written hundreds of statutes differently so that they would be enforced in jury trials. It also could have appropriated sufficient money to federal agencies to allow them to hire trial counsel who could bring proceedings in federal district courts.

But Congress has instead operated for many decades under the assumption that cases like Atlas Roofing are good law. And now the Supreme Court has pulled the rug out from under a multitude of federal statutes.

This Court doesn’t typically care this much about the Seventh Amendment
In light of the Court’s newfound appreciation for civil jury trials, it’s worth noting that the Court’s Republican appointees have historically read the Seventh Amendment very narrowly in cases that do not involve hedge fund managers.

The Court has long held that companies may force their workers and consumers to sign away their right to sue that company in a real court — one that can conduct a jury trial — and instead have the case heard by a private arbitrator. The Court has, at times, claimed that forced arbitration is lawful because workers and consumers nominally consent to arbitration when they decide to do business with the company. But many of the Court’s arbitration decisions raise very serious questions about whether the justices understand what the word “consent” means.

In Epic Systems v. Lewis (2018), for example, the Court held that an employer can simply order their employees to give up their right to a jury trial, under pain of termination.

So the Court’s approach to the Seventh Amendment is incoherent, and after Jarkesy, it could lead to dozens or even hundreds of federal laws arbitrarily ceasing to function.