Tag Archives: government

Emails

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How do you get 650,000 State Department emails onto one laptop, even if accumulated over some years?  Especially when it’s a laptop that isn’t routinely used by a State Department employee or confidante of a State employee, but instead is owned by (or at best shared with) a State employee/confidante spouse and dependent?

Separately, might some of these be copies of the emails Democratic Party Presidential candidate Hillary Clinton deleted under the claim that they were personal, centered on wedding planning and yoga?

What’s the Chinese Term for Aппара́тчик?

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Law firms in the People’s Republic of China are about to get them.  In addition to two new Rule by Law directives that prohibit PRC lawyers from criticizing the government on the one hand and that require PRC lawyers to overtly support the Chinese Communist Party on the other, these law firms are required to accept into their organizations

establishment[s] of Communist Party branches[.]

To ensure proper behavior.

Democrats and Security

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First there was Democratic Party Presidential candidate Hillary Clinton’s unsecured, personal and private email server on which she conducted official State Department business and which she used for handling over 2,000 classified emails—some of which also were marked classified.

Then there was the breathtakingly easy hack of Democratic National Committee email servers.

Then there was the similarly breathtakingly easy hack of Democratic National Convention Committee email servers.

Now there’s this.

[I]n 2009, Hillary Clinton’s top aide mistakenly left potentially classified papers in the front seat of the car she was traveling in.

Huma Abedin realized the significance of her error and sent an email to a fellow Clinton staffer asking that the papers be moved to the trunk.

“I’m going to have ambassador ride on next drive,” she wrote on July 20, 2009. “There’s a bunch of burn stuff in the pocket of my front seat.”

This displays an utter lack of concern by this highly experienced Clinton Aide for the classified documents with which care she’d been entrusted, both in her abandoning them on the front seat of her car and in her request to have them stored (however temporarily) in the unsecured trunk of her unsecured car rather than have them properly taken under control.

There’s also no indication Abedin gave any thought to whether her colleague had either the clearance or the need to know (both of which are necessary before an individual can be allowed to handle classified material) before she requested him to take possession of those abandoned documents.

Nor is there any indication that the unnamed staffer ever was debriefed on his handling of the documents.

There clearly were no sanctions applied to Abedin for her extreme carelessness in her handling of these classified documents.

It seems pretty evident that Democrats, at least senior Democrats, don’t understand security, or they don’t care about security.  Either way, our nation cannot afford such as these in our government.

A Thought on Chevron Deference

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Chevron Deference is a Supreme Court-created doctrine flowing from an appeal by Chevron Corporation to NRDC v Gorsuch, in which the Natural Resources Defense Council, during the Reagan administration, sued the EPA over a then-newly enacted regulation that allowed manufacturing plants to get pollution emission permits for new equipment that didn’t meet EPA emission requirements so long as the plant’s total emissions didn’t increase following the new equipment’s installation.

The Supreme Court found for the NRDC in Chevron’s appeal (Chevron USA v NRDC) and in the process created their Chevron Deference doctrine.  The heart of the doctrine, as articulated by Justice John Paul Stevens in writing for the majority, is this two-part test [citation and footnotes omitted]:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.  First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

“The power of an administrative agency to administer a congressionally created…program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”

Eliding the specifics of the case and appeal, what Chevron Deference says in essence is that the Court owes Executive Branch offices considerable deference in those offices’ interpretations of statutes and the regulations those offices implement to enact those statutes: the Courts’ opening position should be that those offices are correct in their interpretations and implementations.  The problem, though, is in Stevens’ last sentence and in the sentence he quotes:

…whether the agency’s answer is based on a permissible construction of the statute[,]

and

The power of an administrative agency to administer a congressionally created…program necessarily requires the formulation…of rules to fill any gap left, implicitly or explicitly, by Congress.

Here is what the Constitution has to say on…gaps:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Legislative powers—every single one of them—are the sole province of our United States Congress, and not any other body.  That Congress, too, consists solely of a Senate and House of Representatives; it does not include Executive Branch offices or Cabinets…or Agencies, administrative or otherwise.

What about those gaps in legislation?  All legislation, of necessity, fills gaps, whether those gaps exist de nihilo or they exist, or develop, as the law is seen in operation and/or as society evolves—else there’d be no legislation.  That includes, naturally, gaps in legislation.

When an (administrative) agency creates a rule to fill a gap in legislation that agency is authorized to administer, it is doing far more than formulating policy, or setting out rules for carrying into effect aspects of the legislation.  It’s legislating into that gap, which only Congress can (not may) do.

There’s also a problem with the concept of deference.  Regulating agencies are subordinate entities of the Executive Branch, and as such they cannot have any status but a subordinate one to each of the three branches of our Federal government.  From the other side of this relationship, the judiciary is a coequal branch of our Federal government, equal in status, hierarchy, and power and authority to each of the other two.  As such, Courts owe no deference at all to either of the other two branches, much less to agencies subordinate to either of those branches.  The mindset that the Courts do owe deference is a dangerous one.

The Chevron Deference doctrine is wrong.  The right answer for a Court in adjudicating a regulation has a different second step:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is nearly the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress—so long as that intent is implemented in a constitutionally permitted manner, for if it has not then regardless of intent, the statute cannot stand.  If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, or allow an administrative interpretation to stand. Rather, if the statute is silent or ambiguous with respect to the specific issue, the answer for the court is to return the matter to the legislative (political) branch of the government so it can address what is strictly a legislative and a political question.

California’s Disdain

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…for religion is made manifest by its SB 1146, Equity in Higher Education Act, currently under consideration before the California Senate.

As it currently stands, parochial schools—church schools, religious schools, schools run according to a clearly stated set of religious tenets—are exempt from discrimination laws where such discrimination is centered on religious beliefs.  Schools and their students are free to follow their conscience and to require employees, and students, to adhere to certain basic sets of behaviors.  As Archbishop Jose Gomez and Bishop Charles Blake put it in their piece,

Current California law exempts religious schools from nondiscrimination laws in cases where applying these laws “would not be consistent with the religious tenets of that organization.”
…
For years now, this policy has worked well, enabling church-run colleges and universities to hire personnel and establish policies and expectations regarding religious practice and personal conduct that reflect their beliefs and values.

California State Senator Ricardo Lara’s (D) bill seeks to destroy this (Gomez and Blake are more polite about Lara’s motive and his bill’s overall impact.  I don’t agree, though, that Lara doesn’t understand what he’s doing).  His bill would only exempt seminaries or other schools that train clergy and ministers; it would rescind that religious freedom protection everywhere else.

Any other faith-based school that receives state monies or enrolls students who depend on the Cal Grants financial aid program would be forced to change their policies to accommodate practices that in some cases would be contrary to their beliefs and teachings.

Detailed provisions in the legislation include rules for bathroom use and sleeping arrangements in dormitories. The bill even has the government setting guidelines for what “religious practices” and “rules for moral conduct” will be acceptable on these campuses.

All in the guise of “protecting” individual choice.  Never mind, though, that Lara knows full well that those who wish to work or study at these schools are making their choice at that point.  Never mind, either, that Lara knows full well that his bill allows those who disagree with the school’s religious tenets can attend, or get hired, and then force the school to violate its own tenets to accommodate these.

Never mind, either, that Lara knows full well the damage his bill will do to those he claims to be trying to help, low-income and minority families—including millions served by our respective faith communities here in Los Angeles.  As Gomez and Blake note—and as Lara surely knows—60% of these religious schools’ students are minorities and nearly 90% need financial aid.  Aid that Lara’s bill would cut off unless these schools kowtow to his demands.

It shouldn’t take elders of the religious community to point this out.  Any lay person—me, for instance—can see this plainly.  Which means, in particular, that Lara, whose bill this is, sees it plainly.  And doesn’t care.

Keep in mind one other thing, too.  Rights granted by Government, or presumed granted by Government, can be withdrawn by Government, too, and at that Government’s whim.  Lara’s bill is a clear demonstration of that.