Tag Archives: regulation

Court Deference

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The Supreme Court has before it American Hospital Association v Becerra, which The Wall Street Journal suggests makes a sufficient vehicle for revisiting judicial deference to an Executive Branch agency’s claims about the legitimacy of this or that regulation promulgated by the agency. The specific item is HHS’ Medicare reimbursement rates for outpatient drugs.

The question is far broader than that, however.

Chevron deference and its still extant forebear, Skidmore, need to be overruled, rescinded, and done away with altogether, along with all other moves, even predispositions, to defer. A regulation (or a mandated drug reimbursement rate) is valid or it is not on its merit, not because a government expert says it is.

It’s wholly unacceptable for a coequal branch of our government to subordinate itself to another coequal branch, much less to an unaccountable subordinate formation of that other branch.

Eliminating deference—subordination—and striking rules that exceed the governing statute’s scope, especially on the grounds that the statute was so vague (as Congress has taken to doing) that an Executive Branch agency must, or has the “flexibility” to, write regulations so originating as to be the agency doing its own legislating, would go a long way toward forcing Congress to do its own job rather than wishing it off onto others.

Our Constitution’s Article I, Section 1, should be dispositive here.

Government Control of the Means of Production

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And it begins with Government control of the means of financing the means of production (among other things to be financed).

The acting head of the US’s top banking regulator called for banks to be screened for climate risk as part of their periodic stress tests and said the agency’s own regulatory approach was focused on maintaining the safety and soundness of the financial system.
“Banks face all sorts of risks everyday—credit risk, market risk, liquidity risk,” said Michael Hsu, acting comptroller of the currency. “What’s emerging now is that climate change is going to be impacting a number of those risks in different ways, and we need banks to prepare for that.”

This is nonsense. The risk that banks must be able to manage, in this venue, is the risk involved in Government reaction to the “climate change,” whether global warming is real or not.

Hsu’s attempt has nothing to do with the safety and soundness of our nation’s financial system; it has everything to do with an attempt to increase Government control of our nation’s financial system.

Be Like Austria

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That’s what Biden-Harris want for us with zir continued penchant for isolation and demands for vaccination—”[t]his is not about freedom or personal choice“—demands for masking, even of small children, and threats of lockdown, whether explicitly or by outcome.

Austrian Chancellor Alexander Schallenberg, by fiat, is locking up all Austrians in the nation—even his vaccinated (but apparently still “unprotected”) subjects in order to “protect” all from the Wuhan Virus.

Schallenberg said the lockdown will start Monday and initially last for 10 days. Most stores will close, and cultural events will be canceled.
He initially said all students would have to go back into homeschooling.

After those 10 days, if the subjects don’t satisfy their Chancellor, Schallenberg may well extend his locking up for another 10 days.

At least now the Progressive-Democrats are getting specific, and not just pushing their more amorphous “be like Europe” mantra.

Progressive-Democrat Strikes Again

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Austria is locking up down into their homes all Austrian citizens who remain unvaccinated against the Wuhan Virus.

World renowned epidemiologist and Progressive-Democrat Arne Duncan, late Secretary of ex-President Barack Obama’s (D) Education Department, says that’s a good idea.

If you [sic] a danger to yourself and others, you must remain at home. If you aren’t, you are free to roam around the country. Austria is onto something…

Then he closed his deal with this:

I look forward to the day when we Americans value the health, safety, and well-being of our neighbors at least as much as we value our personal freedom.

Those pesky freedoms. How they do get in the way of our Know Betters telling us how to live our lives. For our own good, of course.

Duncan’s position, the core ideology of the Progressive-Democratic Party, is a clear illustration that our safety and well-being, along with those of our neighbors, are at greatest risk when we lose those personal freedoms.

The Left and their Party know this full well, which is why they’re at such pains to disparage our personal freedoms.

Biden-Harris Diktat

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The 5th Circuit has affirmed its stay of OSHA’s mandate that employers must require—be deputiz[ed] their participation in OSHA’s regulatory scheme as the court acknowledged—employee vaccines, testing, or termination, or face deliberately destructive fines for not doing so.

An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.

The appellate court went on:

[T]he Mandate…exposes them [the covered businesses] to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.

And [citation omitted, emphasis added]:

Under the traditional stay standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”
Each of these factors favors a stay here.

Regarding that first criterion, whether the stay applicant is likely to succeed on merit:

[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).

And [emphasis in the original]:

The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.

And:

OSHA’s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.
…
Any argument OSHA may make that COVID-19 is a “new hazard[]” would directly contradict OSHA’s prior representation to the D.C. Circuit that “[t]here can be no dispute that COVID-19 is a recognized hazard.”

And [citation omitted, emphasis added]:

It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.
…
Because it is generally “arbitrary or capricious” to “depart from a prior policy sub silentio,” agencies must typically provide a “detailed explanation” for contradicting a prior policy, particularly when the “prior policy has engendered serious reliance interests.” OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.

The ruling goes on in similar veins regarding the other three factors of consideration for issuing a stay.

Here is an example of the Progressive-Democrat administration’s penchant for ruling by diktat and its utter disregard for pesky laws, our Constitution, and We the People—our government’s employers—when any of them, or us, become inconvenient to any Progressive-Democrat wish.

Especially in this regard, as the court noted in its assessment of the degree of harm to us individual citizens were a stay of this OSHA rule not granted, is this [citation retained]:

For the individual petitioners, the loss of constitutional freedoms “for even minimal periods of time…unquestionably constitutes irreparable injury.” Elrod v Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

The court’s ruling can be read here.