Category Archives: regulation

Another Reason to Rescind Chevron Defense

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As The Wall Street Journal‘s editors put it in their editorial last Tuesday, nothing is stopping the

Securities and Exchange Commission and prosecutors from finding [regulatory] meaning in statutory penumbras.

Now the SEC is manufacturing a rule based on nothing but the æther in SEC Chairman Gary Gensler’s mind. Gensler has hailed into court a pharmaceutical company employee for the “insider trading” crime of trading in options on the stock shares of another pharmaceutical company, a company about which the man had no insider information at all. Not a whit.

Gensler, however, in plumbing the depths of his shadowy æther, has claimed to have found something in a penumbra of Federal law and Court decisions regarding insider trading. The man he’s charging knew from an employee-broadcast email from his company’s CEO that his company might be about to be acquired by another company—not the company in which our man did his trading.

Poof—Gensler has waved his hands and conjured an insider trading beef centered on no insider trading information at all. As the WSJ noted,

Federal law doesn’t explicitly ban trading on confidential information. But courts have said that insiders defraud companies by “misappropriating” private information for personal gain.

It’s in the phantasmal penumbra of “private information” that Gensler has conjured his offense: private information in one company (not even that private, it was a company-wide email that revealed the potential for an acquisition of the employee’s company) casts a shadow over other, Gensler-unspecified, companies, and so brings those other companies into the reach of one company’s allegedly private information.

And this, regarding those chimeric penumbras[1] of which too many of our courts still claim to see:

If something is in a penumbral region, it is not in the text.  If it is not in the text, it does not exist ….  If it does not exist, a judge cannot rule on it.  If in the end, all a judge can do after carefully reading the text is go more than a toe’s dip into its shadows for meaning, then he must not go in: he must rule a lack of governing statute or strike the statute for vagueness, and in either event return the matter to the political branches.

And this, from Justices Antonin Scalia and Clarence Thomas, in denying a 2014 cert petition in Whitman v US [emphasis in the original]:

Only the legislature may define crimes and fix punishments. Congress cannot, through ambiguity, effectively leave that function to the courts—much less to the administrative bureaucracy[.]

Now the Supreme Court must overrule the SEC outright, which would be much easier to do were it to also—or already have by the time this case reaches it—rescinded the Chevron Defense foolishness which subordinates, by Constitutional design, the coequal Judiciary not just to the Executive, but to Executive subordinate branches led by political appointees and peopled by unknown and faceless bureaucrats.

[1] Hines, Eric, A Conservative’s View of the American Concept of Law

How Good is Good Enough?

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The EPA has finalized, despite a plethora of public comment decrying the move, a pollution regulation that, among other things, tries to vastly reduce the amount of soot particles in the air we breathe. Vastly reduce: from the current standard of 12 micrograms per cubic meter of air to 9 micrograms per cubic meter—from almost nothing to even more almost nothing.

Never mind that the ordinary march of technology and ordinary free market forces have already reduced the amount of soot in our air by 42%, or that there’s vanishingly small [sic] room between the existing almost nothing and nothing.

Never mind, either, most of these fine particles are produced by construction sites, unpaved roads, and agriculture fields.

As much as 30% of all counties in the US…would have to block permitting of manufacturing facilities and new infrastructure projects.

So much for Progressive-Democrat President Joe Biden’s highly touted infrastructure project spending. There is an upside, though. John Kerry and his climatista syndicate would be moved closer to their goal of putting farming out of business.

What is this EPA’s limiting principle? It doesn’t have one.

This Is Why Unions Need to be Busted

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Iowa State Senator Adrian Dickey (R, Packwood) has introduced SF 2374, which is a bill that would

require each public employer to “submit to the [Public Employee Relations Board, or PERB] a list of employees in the bargaining unit” within 10 days of a union recertification election.

Never mind that Iowa’s taxpaying citizens have every right to know what their tax dollars are being used for and who’s being paid with them. Never mind, either, that the bill requires public employers, not unions, to submit lists of eligible employees. Never mind, either either, that unions insist on precisely this information when it’s useful for them; unions just call it card checking.

Jesse Case, Teamsters Local 238 Secretary-Treasurer, says that everything—including strikes—are on the table if that’s what it takes to stop the bill. He’s even proposing some wildly inappropriate, deliberately dangerous, union actions if his union doesn’t get its way:

Let’s say you’re a water treatment person and you get a call at three in the morning that says, “The water supply’s going down,” you’re not obligated to answer that call and that’s not a strike.
It’s not a work stoppage because you’re not getting paid at three o’clock in the morning to answer your phone. In fact, it’s against the law to make somebody answer their phone if they’re not receiving pay.
…
It’s [sic] there’s a blizzard moving in at three in the morning, you can go into work at seven or six or your regular scheduled time—call Senator Dickey to come plow your streets.

The union doesn’t care about the risks to businesses or lives; they want their way. The union doesn’t care that those hours already count as serious overtime, emergency or not, with serious extra pay associated.

These strike threats, these union flu work slowdowns, this you can’t have anything unless we get everything ideology, this legalized extortion—nice business/state/whatever you got there, be too bad if something was to happen to it—is exactly why today’s unions need to be busted.

The Iowa legislature and Governor need to stand tall and pass the bill and apply the consequences to these unions.

Not All It Can Do

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Progressive-Democrat Mayor Eric Adams’ New York City government has a new way to spy on American citizens resident in that city, or even just visiting.

New York City drivers buckle up because Big Brother (aka the MTA) is keeping a watchful eye on you by installing cameras along New York City streets to track you. But why? Well, it all boils down to money, of course. The MTA is rolling out a controversial $15 per day congestion fee for all drivers venturing south of 60th Street. They’ve even given this area of Manhattan a snazzy name: the toll congestion zone.

That’s its publicly stated—look, a squirrel—purpose.

Another purpose, one Adams and his city government don’t want to mention, is to track those drivers to see where they go; where they park and shut down, presumably getting out of their cars; what shops they go to, at least identifying the shops within walking distance; and how long they’re there.

Because inquiring Government minds want to know.

More Reasons to Disband

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Now the Biden administration is actively seeking to undermine our friends and allies on top of destroying our energy industry.

The White House on Friday announced a temporary pause on pending decisions of exports of liquefied natural gas to non-free trade countries, until the Energy Department can factor climate change into its reviews of the projects.

Two changes (for starters) are badly needed, and these changes badly need significant majorities in the House and Senate and a Republican in the White House (which puts a premium on the elections this fall).

One of those changes is enactment of a statute giving the relevant approval authority(s) 10 calendar days in which to approve an export application or to provide a detailed explanation for denial, which explanation must have only concrete, measurable reasons, be devoid of generalities, and be publicly available NLT the 11th day. Absent such a decision, the application must be deemed approved.

The other change is the disbandment of the Department of Energy with all Department personnel returned to the private sector, not reassigned elsewhere in the Federal government. The only functions remotely worth retaining are ARPA-Energy and Science and Innovation, which should be folded into ARPA with circumscribed funding authorities.

Another change, in furtherance of the concept of the second change, is the disbandment of the Environmental Protection Agency, with its personnel also returned to the private sector, rather than reassigned within the Federal government. This agency—the managers in charge of it, along with its employees, have for too long conflated environmental protection with climate “protection,” with its cockamamy decisions exemplified by its ruling that plant food in our atmosphere—CO2—is a pollutant.