Category Archives: regulation

Dictating the Terms of Business

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The Progressive-Democratic Party is at it again, trying to dictate how private businesses in our, so far, substantially free market economy will be permitted to operate. Progressive-Democrat President Joe Biden intends to dictate to landlords:

Today, I’m sending a clear message to corporate landlords: if you raise rents more than 5%, you should lose valuable tax breaks.

This isn’t just the big landlords, either, bad as that would be by itself. Biden’s proposed cap would apply to half the rental market in the country.

We’ve known this for a while. Here’s then-Progressive-Democratic Party Presidential candidate Joe Biden tweeting:

Joe Biden @JoeBiden · 14h
We’re going to beat Donald Trump. And when we do, we won’t just rebuild this nation—we’ll transform it.

He’s talked about fundamentally transforming our economy in his State of the Union addresses, also.

A Couple of Supreme Court Rulings

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The Supreme Court announced its ruling in a case centered on Chevron Defense, and rescinded that precedent [citations omitted].

The only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” is for the Court to leave Chevron behind.

And

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

The Court also announced its ruling, a couple of days prior, in SEC v Jarkesy that the SEC—government regulatory agencies in general—seeking monetary punishments must do so through an Article III court and a jury trial. As summarized in The Wall Street Journal,

The Court’s decision means most complaints by agencies seeking penalties will have to be charged in federal courts, where defendants enjoy more procedural rights including to legal discovery. Agencies also won’t benefit from a home-court advantage. They win nearly every case in their own tribunals, as you might expect.

And, especially decisively, Chief Justice John Roberts, writing for the Court wrote

A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands. Jarkesy and Patriot28 are entitled to a jury trial in an Article III court.

Justice Neil Gorsuch wrote a concurring opinion that expanded on the CJ’s ruling and strengthened it IMNSHO [citation omitted].

The Seventh Amendments jury-trial right does not work alone. It operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, liberty, or property. The Seventh Amendment guarantees the right to trial by jury. Article III entitles individuals to an independent judge who will preside over that trial. And due process promises any trial will be held in accord with time-honored principles. Taken together, all three provisions vindicate the Constitution’s promise of a “fair trial in a fair tribunal.”

I put these two rulings together in this article because I see considerable synergy between them. No longer are our courts expected to defer to the judgment of Executive Branch regulators.

That means that even—especially—in both criminal and civil trial courts, after Jarkesy now the courts of first recourse for regulators seeking punishments, the judgment of regulators can be only that—judgment/opinion—and regulators’ judgments can carry no more weight than those of any other expert witness either party to the case might call to the stand—and they are just as vulnerable to showings that the expert isn’t all that.

Especially important, regulators must make their case in front of a jury of their accused’s peers.

That’s good for American liberty.

A Woke…or Something…State Judge

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A Montana State district judge, Shane Vannatta, is having trouble with reality. He has ruled a law, AN ACT GENERALLY REVISING THE LAWS TO PROVIDE A COMMON DEFINITION FOR THE WORD “SEX” WHEN REFERRING TO A HUMAN unconstitutional because

the bill’s title did not adequately explain whether the word “sex” referred to gender or sexual intercourse and that it did not indicate the words “male” and “female” would be defined in the body of the bill.

Never mind that bill titles typically do not themselves include glossaries or references to glossaries. His plaint that “sex” was unclear in its intended subject in the present title is simply disingenuous since the title explicitly states “when referring to a human”—and does not suggest, even by tenuous innuendo, “when referring to human sex practices.”

Never mind, either that the law’s first paragraph and that paragraph’s first two subparagraphs provide precisely the definitions of interest:

Section 1. Section 1-1-201, MCA, is amended to read:
“1-1-201. Terms of wide applicability. (1) Unless the context requires otherwise, the following definitions apply in the Montana Code Annotated:
(a) “Female” means a member of the human species who, under normal development, has XX chromosomes and produces or would produce relatively large, relatively immobile gametes, or eggs, during her life cycle and has a reproductive and endocrine system oriented around the production of those gametes. An individual who would otherwise fall within this definition, but for a biological or genetic condition, is female.
(b) “Male” means a member of the human species who, under normal development, has XY chromosomes and produces or would produce small, mobile gametes, or sperm, during his life cycle and has a reproductive and endocrine system oriented around the production of those gametes. An individual who would otherwise fall within this definition, but for a biological or genetic condition, is male.

Apparently, Vannatta’s law school training didn’t include a literacy test, nor did it train him in extending his attention span. For the good of the State, especially for the good of Montana’s citizens, he needs to be removed from the bench until he corrects those deficiencies.

How Many?

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The FBI says it has identified a characteristic common to sites of active shooter shootings.

…open spaces—which include roads, neighborhoods, parks, and outdoor venues—are the places where victims are most likely to be targeted.

There’s one other characteristic, not fully addressed in the FBI’s report, that’s well worth consideration. How many of those locations were defenseless, whether because laws barred firearms from the areas or because the relevant business owner—mall owner or theater owner, for instance—lawfully posted his locale as barring firearms? The report did address this, but only tangentially, with this single remark, captioning a single chart:

Of the 48 incidents in 2023, four involved civilian intervention where a civilian intervened or attempted to intervene, resulting in two civilian casualties.

Across all 48 of the 2023 active shooter events, there were 105 killed, and 139 injured. Subtract off the two casualties where civilians responded in the time frame before the cops could arrive—naively allocating the two to one death and one injury—and that works out to an average of 2-3 deaths per defenseless event and 3-4 injuries per defenseless event.

Clearly armed patrons already on scene reduced the casualty rate by filling the gap between the onset of the event and the arrival of the second first responders. But the wannabe gun controllers would rather sacrifice the Left’s “if it saves one life” mantra in favor of their obsession with disarming all of us.

 

The FBI’s report can be read here.

Should be Easy

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The Supreme Court has agreed to hear a Biden administration suit against Tennessee over whether that State can restrict medical treatments for transgender minors.

[T]he court said it would hear the Biden administration’s challenge to a Tennessee law that bans gender-transition care, such as medications that can delay the onset of puberty and hormones that can cause physical changes such as the development of facial hair or breasts.

Leave aside the question of whether there is such a thing as “transgender minors.” There is, but they’re exceedingly rare, and those cases are easily identified by physiological factors like stunted development of physical sexual characteristics that are consistent with the child’s DNA-determined sex, or excessive development of physical sexual characteristics that are contrary to the child’s DNA-determined sex.

The Court’s ruling in the Tennessee case should be a short, sweet one-pager: Yes, the State can restrict medical treatments for transgender minors.

What would be nearly as bad as ruling against Tennessee would be the Court expanding on that simple Yes by writing limits—minimum or maximum—to the State’s authority to restrict. Limits on the authority to restrict are themselves political decisions that must be left to the political branches of our Federal government—Congress and the President, or Congress overriding a veto—and to the State governments individually.