Orange Is the New Black
Cleaning out the Augean Stables of corruption, mismanagement, and mean-spirited rules is quite the job.
Trump Reins in Bureaucrats’ Criminal Code
It will be interesting to see the pushback on this move to reduce or eliminate the overcriminalization of regulation.
Who better to do this than a man who was accused, prosecuted, and found culpable of mortgage fraud where there were no victims, the lending bank had no issue, and he was following procedures that everyone of his peers used (without sanction)?
Taking a big stick away from the regulators may not emasculate them, but it sure as hell levels the playing field.
‘In 2020, boat crewmen John Moore and Tanner Mansell found what they thought was an illegal fishing line off the Florida coast. Believing it the work of poachers, they cut the line, freed several entangled sharks, and called the authorities. In response, the authorities charged and convicted them of felony theft of government property.
‘Moore and Mansell’s story is an instance of overcriminalization, the improper use of criminal law to accomplish political ends or address trivial societal issues.
‘Now, President Donald Trump has issued a much-needed executive order to try to rein in this abuse of the criminal law—one that will hopefully mean fewer people find themselves in Moore and Mansell’s position.’
I have seen State’s dysfunction up close — Rubio’s reshuffle is just what it needs
If State is more effective with fewer people because the bureaucratic conflicts were eliminated with this reduction in force, it will be like the line in Apocalypse Now when Captain Willard voices over “Guess he must have hit the right four people” in reading how Colonel Kurtz arrested and executed some Vietnamese administrators, leading to a massive reduction in his own forces’ casualties.
Not everyone will be happy.
‘Rubio is enacting his organizational change to break the stranglehold of this type of bureaucratic quagmire that runs counter to American diplomatic effectiveness and responsiveness. In doing so, he will cut 700 positions and 132 offices in the sprawling structure of the State Department while shifting functional roles into regional offices where they can be managed in accordance with the needs of country teams and through the lens of regional expertise.’
Eliminating the need for notice and comment in rescinding rules is one way to move quickly. The legal justification is that the rules had nothing to do with statute.
‘The showerhead order and the Department of Energy’s subsequent rescission—one of potentially many coming rescissions—might seem insignificant. It is unlikely that many Americans will feel the impact of a changed definition of showerhead, for example, or that many felt deprived of the chance to weigh in on the change through notice and comment. But the order and the agency’s response, combined with the general directive to repeal rules without notice and comment, signal a striking expansion of presidential control of agency rulemaking.
‘In the two orders, the President provided different justifications for forgoing notice and comment. In the showerhead order, the President essentially stated: “Because I said so.” In the order directing the repeal of “unlawful regulations,” the President offered as more substantial legal bases several U.S. Supreme Court decisions and what is known as the APA’s good cause exception.
‘The Supreme Court decisions cited in the order to repeal rules, the President explained, “recognize appropriate constitutional boundaries on the power of unelected bureaucrats and restore checks on unlawful agency actions.” Relying on the Court’s holding in West Virginia v. EPA, for example, the President directed agencies to repeal economically or politically significant rules for which they did not receive “clear congressional authorization.” In invoking Loper Bright Enterprises v. Raimondo, the President directed agencies to unsettle existing interpretations of statutes that might not stand without Chevron deference, under which courts deferred to agencies’ reasonable interpretations of their statutes.’
A Reckless Game of Regulatory Jenga - Remarks at “SEC Speaks”
Commissioner Crenshaw no doubt intended this speech as high-falutin’ criticism of the Administration.
Of course, the suggestion that the financial system is more fragile than we assume and is vulnerable to the unintended consequences of the removal of even ostensibly small regulations doesn’t instill the kind of confidence one might expect from her.
This is like whispering fire in a crowded movie theater.
‘As we careen down this path full speed, it almost feels like we’re playing a game of regulatory Jenga. Our proverbial Jenga tower is made up of a set of discrete but interrelated rules and laws, deeply and carefully developed over the years, and implemented by a strong agency of experts, skilled in overseeing and regulating our increasingly complex markets.
‘Of course, in Jenga, the tower remains standing when you pull out a block or two here and there. But, how many blocks can you pull before the tower gives way? When it comes to the stability of our markets, how far are we willing to take our dangerous game? Who would ultimately be the loser when the foundation gives way? I worry, as we all should, that those losing the most won’t be the influential, monied interests; rather, it will be the Main Street Americans – the investors and small business owners who can least afford the greatest loss. Consider some of the actions of the agency over the past weeks and months.’
HUD Secretary targets the ‘enemy’ of new housing
Bureaucracy keeps people from owning homes.
‘Speaking to hundreds of real estate executives at the T3 Leadership Summit on May 19, Turner laid out his vision for HUD: to clear away the bureaucracy he says is getting in the way of homebuilding efforts, and to get creative with public-private partnerships and community-level programs to reach those goals. (Note: Real Estate News is an editorially independent division of T3 Sixty.)
‘"Bureaucracy is so often the enemy of new home construction," Turner said, soliciting — and receiving — general agreement from the crowd. "I am with you," he responded. "I think the same way, and so we're working hard to get this done."’
Is bureaucracy evolving faster than process excellence?
This is interesting language because implicit in it is an acknowledgement of the organic nature of bureaucracy. Process turns into a mechanism for control in the same way that life-sustaining organs develop hideous cancerous growths.
‘How do you know if bureaucracy is evolving faster than your process excellence strategy? Growth is often seen as the ultimate sign of success for a company. However, the more it grows, the more layers of approvals, policies and committees it adds.
‘Ironically, companies can turn into the very thing they swore to disrupt – a bureaucracy. The very companies that valued being lean have become more bloated than the government departments they derided.’
Pennsylvania Judge Strikes Blow Against Environmentalist Lawfare Campaign
Common sense for the win in Pennsylvania.
‘A local judge has thrown out a lawsuit brought by a Pennsylvania county seeking to hold fossil fuel companies responsible for emissions present throughout the country, regardless of the actual source of those emissions, striking a blow against a burgeoning environmentalist legal tactic.’
It’s Time to Rein In Nationwide Injunctions
Will the Supreme Court overshoot on the nationwide injunctions?
‘We think the better answer, however, is for both the Court and Congress to place limitations on the use of nationwide injunctions rather than abolish them entirely. Congress should play the leading role in that process. We can hardly think of a better test case for reviving the national legislature’s capacity to enact bipartisan legislation that improves the functioning of the federal government while fortifying its respect for individual rights and the rule of written law.
‘After all, judicial activists hamstringing the executive’s power to govern is bad, but it is also destructive for the executive branch to arrogate powers belonging to Congress or the courts, trample constitutional rights, and rule by presidential fiat or unaccountable bureaucratic dictate. The past decade and a half have not been short on examples of all of these abuses, for which the intervention of the courts has been an essential check on an overgrown executive and administrative state.’
A Universal Injunction Compromise
Let them fight it out.
‘Does a single federal judge, with jurisdiction over a state or a district within a state, have the authority to stop the government from carrying on an allegedly unlawful policy everywhere in the country? The permissibility of such “nationwide” or “universal” injunctions is before the Supreme Court in Trump v. CASA. (The case arises from several challenges to President Trump’s executive order denying citizenship to U.S. born children whose parents are nonresident aliens.)
‘From the justices’ questions in oral arguments last week, it was clear all are uneasy with the idea that trial judges have the authority to act as a “roving commission to correct every legal wrong that they can consider and to exercise general legal oversight over the executive branch,” as Solicitor General John Sauer put it. On the other hand, requiring everyone injured by an executive action to initiate his own lawsuit to gain relief seems unduly burdensome.
‘We believe there is a way to create a fair balance—by following the example of a 1973 case called Holtzman v. Schlesinger. Judge Orrin Judd of the Eastern District of New York declared the U.S. bombing of Cambodia unlawful and issued a permanent injunction against the government barring any military activities involving Cambodia. This was an extraordinary ruling, but given the Vietnam War’s unpopularity, the injunction was widely applauded.
‘Still, recognizing the decision’s potential impact, Judd granted the government a two-day stay to allow an appeal. The Second U.S. Circuit Court of Appeals issued a further stay, then quickly reversed the injunction on grounds that it was a nonjusticiable political question. The Supreme Court declined to take up the appeal, so the Second Circuit had the final word.’