Tuesday, August 07, 2018

Does an administrative agency have the power to rewrite an act of Congress?

You've never heard of "Chevron deference"?  It could affect you

The answer to that question in the headline ought to be a resounding no. Yet, by deferring to administrative agencies over the meaning of federal law, the federal courts have for decades empowered the executive branch do exactly this. Agencies now rewrite the law with regularity.

The problem is so-called Chevron deference—a doctrine that was meant to keep courts out of the detailed implementation of federal law. Courts decided to defer to administrative agencies when the law called on them to apply their specialized expertise—especially scientific expertise—to set various standards.

Unfortunately, this practice has gotten out of hand. The courts have allowed agencies to dictate the meaning of federal law and even allowed agencies to change their mind about what a federal law means.

An example is the case of the Federal Communications Commission’s regulation of the internet at issue in Berninger v. Federal Communications Commission, which is currently pending before the Supreme Court on a petition for writ of certiorari. This is a case of an agency saying the law means one thing on one day, and the complete opposite thing on another day.

Indeed, the agency has changed its mind at least three times about the meaning of this one law. This must stop, and Berninger just might be the case for the court to put an end to this foolishness.

To get an idea of the shenanigans of the FCC in this case, you need to go back in time to 2005 to a Supreme Court case titled National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005). The issue in that case was whether broadband internet providers should be regulated as telephone companies (heavily regulated utilities) or information service providers (much lighter regulation under the law).

The FCC opted for the lighter version of regulation, interpreting the Communications Act of 1934 and the Telecommunications Act of 1996. The court ruled that this was a permissible interpretation of the federal law and that the decision of the FCC was entitled to deference under Chevron.

Ten years later, the FCC changed its mind and decided that the same law interpreted in 2005 now meant that the FCC had the authority to regulate broadband internet companies as if they were telephone companies. The District of Columbia Circuit Court of Appeals ruled that the FCC’s new decision was also entitled to deference under Chevron.

The following year, with a change in personnel, the FCC changed its mind yet again ruling that broadband internet companies were really just information service providers and not subject to heavy regulation by the FCC. The law that Congress wrote did not change during this time—only the interpretation of the law by the FCC.

Justice Antonin Scalia was fond of saying: “Words have meaning. And their meaning doesn’t change.” But that is not the case if an administrative agency is allowed to change its mind on the meaning of a statute on a whim.

The words of the statute lose all meaning if a court must permit the agency, and only the agency, to interpret and reinterpret the words Congress wrote into the law. At that point it is the agency, not Congress, that is writing the law. Even worse, it is the agency, not the courts, interpreting the law. The agency becomes a law unto itself, answerable to nobody.

Chevron deference was meant to cure the problem of an activist judiciary crusading to implement its own vision of appropriate regulation. It has led to the greater problem, however, of agencies rewriting the law (through “interpretation”) to pursue their own activist agendas never authorized by Congress.

It is time for the court to put an end to this violation of separation of powers. If the law is clear, then require the agency to enforce it. But if the law is not clear, send it back to Congress and let the elected representatives make it clear.

Chevron deference makes sense when Congress is asking an agency to use scientific expertise to set appropriate limits for air pollutants or exposure to dangerous chemicals. It violates the Constitution, however, when it is used to allow agencies to change their minds on what a law means.



Paul Kengor: ‘A Politically Incorrect Guide to Communism and Socialism’

Communism wanted to disrupt the social order, particularly when it comes to property, which is the opposite of the goal of conservatism, author and professor Paul Kengor said Wednesday at the Young America’s Foundation’s National Conservative Student Conference in Washington, D.C.

In his presentation, “A Politically Incorrect Guide to Communism and Socialism,” Kengor aimed to give the students attending the conference the education they will not get at their liberal universities, specifically in economics classes.

“This is kind of everything you want to know about Marx and communism that your professor with a bust of Karl Marx isn’t going to be telling you about,” Kengor said.

Marx (1818-1883) acknowledged that communism, particularly its views on property, were contrary to the “social and political order of things,” Kengor said. This view, along with the fact that communism seeks to “abolish the present state of things” and believes there are no moral absolutes, is the opposite of conservatism.

Kengor applied this view to current-day progressivism, as well, particularly secular progressives.

“[Secular progressives] are always changing,” Kengor said. “They’re against whatever is in the past. There’s no moral absolutes. It’s completely unlike conservatism, which believes in first things, permanent things, moral absolutes, right? A set of basic definitions of basic things.”

Kengor continued, “Progressives believe that they’re always progressing toward the truth. They’re always changing, they’re always evolving,” a Darwinian-like process.

Kengor specifically referenced liberals’ and Democrats’ definition of marriage. In 2015, a left-leaning Supreme Court ruled same-sex marriage to be a right in Obergefell v. Hodges. However, less than 20 years prior, in 1996, former Democratic President Bill Clinton signed the Defense of Marriage Act that said, for federal purposes, marriage was between one man and one woman.

Kengor also said The Communist Manifesto, written by Marx and his long-time financial supporter Frederich Engels, established immediately that communism wanted to abolish private property, and that the rest of the book “doubles down” on this thought.

He also said Marx acknowledged that his view on property stood contrary to the current “cultural and political order of things.”

“Marx said that communism represents the ‘most radical rupture in traditional relations,” said Kengor. “This is a totalitarian ideology that really seeks to fundamentally transform human nature.”

In the 20th century, communist regimes in Russia, Eastern Europe, North Korea, China, Vietnam, Cuba, and Cambodia were responsible for the death of more than 100 million people, according to The Black Book of Communism (Harvard University Press).



‘In prison for advocating better US-Russia relations’: Butina lawyer on her ‘misunderstood’ case

A Russian anti-government activist remained free in Russia but the Land of the Free locked her up

The media continues to misrepresent the “unprecedented” case against Maria Butina, even as the US government backpedals on allegations levelled at the Russian activist, her attorney told RT in an exclusive interview.

Robert Driscoll said that despite the “tsunami” of negative media coverage aimed at his client, he’s confident that Butina will have a strong defense once the facts of the case are aired in court. Butina, 29, was arrested on July 15 in Washington, DC, and charged with failing to register as a foreign agent of Russia and conspiring against the United States.

The Russian national arrived in the US on a student visa in August 2016 to study for a master's degree at American University, becoming involved with the National Rifle Association (NRA) and conservative activist circles. The US government claims that her networking and political activism was part of work she did on behalf of Moscow.

However, Driscoll explained to RT that allegations made by the US government had been addressed months earlier, when Butina voluntarily testified to the Senate Intelligence Committee, providing thousands of pages of documents to help clear her name. Describing the case as “unprecedented,” Driscoll also took the media to task, pointing out that the facts of the case do not align with the sensational headlines being churned out by US news outlets.

An unprecedented case

The charges against Butina set “a dangerous precedent on a number of fronts,” Driscoll told RT. Using ongoing political upheaval over tariffs as an example, Driscoll said that Chinese businessmen attending a conference in the US, and who advocate for a resolution to the brewing trade war between Washington and Beijing, could be “subject to the same theory that they're agents of a foreign government infiltrating the US.”

Driscoll has previously called the charges against Butina “simply a misuse of the Foreign Agent statute, which is designed to punish covert propaganda, not open and public networking by foreign students.”

Government already backpedalling?

According to Driscoll, the US government has already walked back one of the more sensational claims it has made – that Butina was preparing to flee to Russia at the time of her arrest.

“The government kind of backed off that because I confronted them in court. I sent the government an email at the end of June, telling them she was leaving to move to South Dakota with her boyfriend. So the government was well-aware she was moving. She wasn’t fleeing anywhere, she certainly wasn’t fleeing to Russia,” Driscoll said. “They surveilled her going to UHaul to get boxes – I don't think there's a way to get to Russia by land.”

Rehashing old allegations

Notably, Driscoll said that the US government’s claims against his client had already been addressed months ago, as Butina had voluntarily cooperated with the Senate Intelligence Committee after receiving a letter from the committee in February.

“She consulted me before we went in there, and she voluntarily testified for the committee – she testified for eight hours. We produced thousands and thousands of pages of documents to the committee. We answered every question they had, and explained basically all the types of allegations that the government has made in this subsequent criminal case. I think eventually, when everyone sees that, when that becomes public, that will help her defense as well.”

Where's the espionage?

Driscoll expressed frustration at the way that his client was being presented in the media, and said he felt it was his duty – within limits – to push back against inaccurate reports claiming that Butina has been accused of spying for Russia.

“As I said the day of the hearing, it's like an eyedropper of commentary from me against a tsunami of negative press from everyone else,” he said. In response to reports that the judge presiding over the case had warned him against “crossing a line” by speaking to the media, Driscoll noted: “I think frankly the risk is nil that a jury is going to be prejudice in favor of my client.”

Breathless headlines about Butina’s alleged activities in the United States read like a spy novel, but the US government's case against the Russian student and gun activist is far more mundane, Driscoll said.

“If you read the indictment of the case, she is alleged to be an agent of Russia who failed to register with the attorney general. Essentially, that means that they have not charged her with espionage and if you read the allegations against her, none of the allegations have anything spy-like about it. Essentially, the government is conceding that even under their own theory, if she had filed a piece of paper with the attorney general's office at the beginning of her trip to America, everything she did was legal.” As Driscoll observed, “people misunderstand a lot of basic things about this case.”

Sex for influence? Still waiting for evidence

Lurid tales that Butina had used offers of sex to navigate the halls of power in Washington have yet to be substantiated by actual evidence – and come off as rather sexist, Driscoll told RT. He added that the allegations were particularly damaging to Butina because “it makes [her case] more like a spy novel, and frankly easier for the public to digest. So editors and producers like those kinds of allegations.”

But the government has yet to provide evidence for their clickbait claims, according to Driscoll.

“[The honey trap] allegation was set forth in a proffer by the government, meaning they did not produce evidence to back up that allegation at the time. We’re still waiting to see that, and we're not sure that it even exists, or that it exists in any meaningful form.”

He added that he thought the US government'’s unproven allegations – which have been dutifully parroted by the media –  were "unfair, and kind of sexist.”

“It’s very hard to see your client kind of dragged through the mud like this, which is why I’ve been trying to push back on that.”

Politically motivated?

Driscoll said it was hard to believe that his client’s arrest was politically-motivated, but stated that he was hesitant to say the case was “completely apolitical, because it’s hard to imagine a national of another country being treated the same way. I think we're in a little bit of a Russophobic time.”

Potentially political motivations aside, Driscoll expressed confidence that his client would receive a fair trial – although acknowledged that overwhelmingly negative news coverage meant that Butina was, to a large extent, already being tried in the media.

“We’ll work hard to make sure she does [get a fair trial], and the judge will work hard to make sure she does. I think things in the end hopefully will be fair for her if it ends up in a trial.”

The ultimate irony

Describing his client as “amazingly bright,” Driscoll said that Butina never imagined that she would find herself in an American prison cell.

“I think there’s an irony to the fact that I think she always thought that if she was going to be in prison, that she would be imprisoned in Russia for advocating gun rights if she went too far with that, and now she’s in prison in the US for advocating better US-Russia relations.”

Driscoll said that Butina was in good health and spirits – despite her unforeseen arrest.

“If this gets back to her parents, I want them to know that she should be in touch soon, and that she’s healthy and well under the circumstances, and we’re doing our best to visit her every day, and make sure to keep her spirits up.”



Peterson on IQ

A very wide-ranging but totally correct survey of the facts


Some more history

I have just added some more material, mostly pictures, to my notes about Theodore Roosevelt.  See here


For more blog postings from me, see  TONGUE-TIED, EDUCATION WATCH INTERNATIONAL, GREENIE WATCHPOLITICAL CORRECTNESS WATCH, AUSTRALIAN POLITICS, and Paralipomena (Occasionally updated),  a Coral reef compendium and an IQ compendium. (Both updated as news items come in).  GUN WATCH is now mainly put together by Dean Weingarten. I also put up occasional updates on my Personal blog and each day I gather together my most substantial current writings on THE PSYCHOLOGIST.

Email me  here (Hotmail address). My Home Pages are here (Academic) or  here (Pictorial) or  here  (Personal)


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