Category Archives: regulation

No They Haven’t

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In a Wall Street Journal article centered on the press-alleged difficulty of putting into action President Donald Trump’s (R) Executive Order specifying that the number of human sexes are two—male and female—the authors wrote this opinion masqueraded as received fact:

As social norms around gender have grown more fluid in recent years….

No, they haven’t.

Their subheadline pushes matter:

Executive order requires changes to passports, prisons and other areas of American life

The implication is that enforcing the outcomes of only two sexes will be very difficult. Never mind the simple fact that difficult means doable.

It won’t be that hard to undo what the Biden administration inflicted over its short term. Passport changes can be reversed as easily as they were inflicted on us, prisons can easily undo the assaults on its female prisoners simply by no longer putting male prisoners in the same prisons as female prisoners and (re)transferring existing male prisoners (back) to male prisons, “other areas of American life” won’t require much change beyond the existing—and vastly incomplete—moves to eliminate DEI bigotry from our institutions.

Not much change will be required because it’s eminently legal for men and women to live their lives as though they were the opposite sex, except where mingling would be inappropriate: males in females’ bathrooms, locker rooms, sports, and the like.

The vast majority of Americans know biology better. We understand full well that in human (for instance) biology, beginning with genetics, there are only two sexes, and which one defines a particular individual is immutably specified at conception—that’s when the chromosomes come together as XX or XY.

It’s true enough that biological mistakes do, rarely, occur and a child gets an XXY or an XYY combination, but those are extremely rare. It’s also true that gender identity disorder (which the authors of the politically written DSM-5 were pleased to relabel gender dysphoria), which is generated primarily by hormonal developments that mistakenly contradict biology and by cultural aspects, occurs, but GID also is an extremely rare occurrence. It’s instructive that GID didn’t become a political matter until the last few years, when identity politics pushers, taking advantage of adolescent hormonal confusion, began pursuing their demand for ever more identities to push and for which to collect government monies and “protections.”

Social norms around gender have not at all grown more fluid except as the Leftist press pushes the narrative created by those activist identity politics pushers. We remain a nation that knows biology better than that.

Changes to the Administrative Procedure Act?

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The incoming Trump administration and the newly installed Republican-led Congress (even if only more-or-less so in the Chaos Caucus-infested House) want to make deep changes to that Act. The law requires, among other things, advance public notice before regulations are adopted or rescinded. The Act more broadly

  • requires agencies to keep the public informed of their organization, procedures and rules
  • provides for public participation in the rulemaking process, for instance through public commenting
  • establishes uniform standards for the conduct of formal rulemaking and adjudication
  • defines the scope of judicial review

That public participation is the advance notice and public comment part, with the mandated notice being several months. The Act, though, was done in 1946, when information moved at the speed of newspapers and radio. We have computers today and the Internet with their vastly sped-up—not quite instantaneous—information dissemination capabilities. The advance notice requirement could easily and beneficially be shortened to 30 days for notice and public comment.

The transparency requirement could be sharply improved. One path for that is strictly enforcing responsiveness to FOIA requests by all agencies: require agency response within those same 30 days, with any failure to respond being deemed approved and the requested information required to be delivered in toto on the 31st day. Redactions also would be profitably limited much further, with reasons for allowed redactions being much more limited. Any document still containing redactions would be delivered promptly to the requester with the same document, wholly unredacted, delivered to the Chairmen and Ranking Members of the relevant House and Senate committees for their information.

The judicial review requirement needs also to be tightened. This can be done by subjecting all rules that come before a court to substantial evidence review, which encompasses the agency’s assessment of the evidence in the record and its application of that evidence in reaching a decision. That standard requires courts to decide for themselves whether the agency’s factual and policy determinations were warranted in light of all the information before the agency at the time of decision. This is especially important in light of the Supreme Court’s rescission of Chevron Deference: courts no longer are subordinate to agency technocrat “expertise,” no longer expected to take an agency’s bureaucrats’ blandishments seriously.

A Foolish Question

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The Wall Street Journal‘s editors note that California’s Progressive-Democratic governor Gavin Newsom has waived some permitting requirements for some folks to facilitate their rebuilding efforts in the wake of the fires burning to ashes some suburbs of Los Angeles. Then they ask

Why not ease regulations for all projects if the rules are such a barrier to development?

It’s clear enough why not. Newsom hasn’t had the epiphany the editors’ headline at the link claims; he’s pandering to the uber-rich and to the upper middle class folks in what is really a narrow slice of the whole of California. Those rich who’ve lost their homes to the fires are major donors to him and to Party. The waiver is limited to these panderees because throughout that whole of the rest of California, Green groups and unions operate, and they’re major donors, also, to Newsom and to Party.

End Congressional Oversight of the District of Columbia?

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Washington, DC, delegate Eleanor Holmes Norton (D) wants an end to Congressional oversight of the District of Columbia, and she’s moving to revive earlier legislation that would to do so.

The congressional review period for DC bills is onerous for the District, and rarely even used by Congress, causing DC bills to be unnecessarily ensnared in congressional bureaucracy for months[.]

It’s already the case, though, that the oversight is so rarely used—only twice in the last 30 years has Congress moved to overrule a DC-passed ordinance—that the district already is, functionally, self-ruling.

However.

The move, even were it a good idea, would require an Amendment to our Constitution. Here’s Art I, Sect 8 on governance of the District of Columbia:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings

Holmes has a beef, in that there are too many bureaucrats involved, and it is much to slow to get anything done. Those 60 days to review an ordinance proposal are patently excessive, especially in this day of computers and Congressional staffs so bloated that staffers are scratching for things to do. I’ll go out on a limb: it shouldn’t take more than a week (Sundays excepted) to do the review and either approve or reject the ordinance.

Those interferences, those delays, badly want reduction.

One More Reason…

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…to stop doing business in New York. This time, it’s the State’s move to tax energy producers who sell their fossil fuel products in the State on the risible basis of those producers’ (global) CO2 production over the years 2000 through 2018. Never mind that, as the Wall Street Journal‘s editors put it,

It’s impossible to determine a company’s contribution to climate change since the effects of CO2 emissions on temperature and natural disasters are mediated by myriad variables.

New York’s bureaucrats will make their assessments anyway, and those assessments will be, of necessity, wholly arbitrary. Then there’s this, too, which New York’s government personages consider irrelevant:

Most fossil-fuel emissions stem from their combustion rather than production….

The fossil fuel energy producers shouldn’t waste time litigating this in court, even though they’d likely win given the plethora of court decisions that hold moves like New York’s illegal.

These folks should simply stop selling their products in New York, and that should include no longer selling their products to utilities that provide electricity- and natural gas-related energy in New York. They’ll save more money that way, money that could be used for innovation and better fossil-fuel-related products for their other customers.

Nor will New Yorkers be harmed by the withdrawal. They have plenty of energy flowing from all those “green” and “renewable” energy sources. And those nuclear reactors on the horizon. The State government’s personages assure us so.