Category Archives: regulation

There is Hope

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Yesterday, the US Court of Appeals for the District of Columbia (the court of jurisdiction, for those who are interested in such things, because this is the appellate court for matters pertaining to the NLRB orders) ruled unanimously that President Barack Obama’s “recess” appointments to the National Labor Relations Board of Richard Griffin, Sharon Block, and Terence Flynn (the latter of whom resigned from the NLRB shortly after) were “constitutionally invalid” because the Senate was not in recess at the time of the appointments.

Writing for the court, Judge David Sentelle had this to say, according to Bloomberg at the above link:

Considering the text, history and structure of the Constitution, these appointments were invalid from their inception[.]

The court expanded on that point in equally clear terms:

…the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings [an adjournment].

…

The natural interpretation of the [Recess Appointments] Clause is that the Constitution is noting a difference between “the Recess” and the “Session.”  Either the Senate is in session, or it is in the recess.  If it has broken for three days within an ongoing session, it is not in “the Recess.”

The court noted further that the Senate was in session at the time of these…appointments.

…the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.

This also has implications for Richard Cordray and the Consumer Financial Protection Bureau he was “appointed” to chair, since he was put up in that same now known to be illegal batch of “appointments” as those NLRB folks.  The thousands of pages of regulations that board has already written now are of only questionable validity; although the question here isn’t so cut and dried: the CFPB had a quorum, and the matter here is the necessity of a formally seated chairman.  It also lends color to his nomination, for the current Senate’s consideration, to that same post.

Apparently, though, there are limits to Obama’s fiat governance.

An Out of Control CFPB?

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But we knew that would be the case with a budget funded by on-demand calls to the Treasury and a deliberate lack of Congressional oversight.  Here are three examples, from Skadden Arps, the “second best global law firm,” according to Spirit of Enterprise.  In each case, the Consumer Financial Protection Bureau imposed enforcement orders that charged both restitution payments and civil penalties for the miscreancies that wanted restitution.  Those miscreancies generally centered on “deceptive marketing and sales practices” and “deceptive debt collection practices.”

Capital One: Required to pay $140 million in restitution and a $25 million civil penalty.  The penalty was nearly 18% of the restitution.

Discover Bank: Required to pay $200 million in restitution and a $14 million civil penalty.  The penalty was 7% of the restitution.

American Express: Required to pay $85 million in restitution and a $27.5 million civil penalty.  The penalty was 32% of the restitution.

Assuming the restitution amounts are reasonable assessments of the severity of the banks’ misbehaviors, those civil penalties seem to bear no relation at all to the…crimes.  They seem, in fact, to be capricious and out of control—just a grabbing of what an unaccountable bureaucrat felt like taking.

Skadden’s complete report (it’s long and wide-ranging) can be seen here.

Texas on Gun Control

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Copied shamelessly from Texas Attorney General Greg Abbott’s Facebook post.

You’ll fit right in here in Texas!

Here in Texas, you will have the liberty and the opportunity to achieve your dreams. On top of that, we have no income tax, yet still manage to have a multi-billion dollar budget surplus.

We have right to work laws and a reasonable regulatory environment. Texas has created more than 275,000 jobs in the last year alone! And we’ll fight like hell to protect your rights.

You’ll also get to keep more of what you earn and use some of that extra money to buy more ammo.

I hope to see you soon in Texas. In the meantime, sign up to show your support for our second amendment rights.

Sincerely,Attorney General of Texas

Take careful note of the details.

Freedom and Liberal Big Government

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Joel Mathis, in has some thoughts on the wonders of the Nanny State.

Why I’m a liberal? I believe you can have freedom and care about reducing income inequality.  I believe you can have liberty and smaller soda sizes.  I believe you can throw off tyranny and still have a smarter health care system that delivers care to more people.  I’m a liberal because even though conservatives and libertarians can sometimes come up with good ideas to address these problems, mostly you sense they’d rather not be bothered.  Which leaves good old-fashioned Big Government as the most likely option to actually fix stuff.

Nannies don’t imprison you, after all, and they never did.  Their job is to help you stand on your own.

Setting aside Mathis’ slur that our disagreement with him means we can’t be bothered, the problem of Nanny-ism has been recognized for some time.  Lionel Trilling suggested in his 1950 book, The Liberal Imagination, that liberalism itself had become stuck in its ways and had lost its ability to think freely.  He expanded on this years later, observing

this dull, repressive tendency of opinion which was coming to dominate the old ethos of liberal enlightenment [, and that liberal thought was losing its place as] a political position which affirmed the value of individual existence in all its variousness, complexity, and difficulty.

Exactly the sort of stultifying loss of flexibility and creativity—freedom of thought and of action—that liberals’ cumulative Big Government impositions (fall or a good cause, though) have on the freedom of all of us.

As Stephen Hayward noted at Power  Line,

[A]m I really less of a free person if I can’t buy a 32-oz soda?  Or [can’t] get a plastic bag in my local store?   In isolation, not really.  But what about when I can’t buy a 32-oz soda, can’t burn a fire in my home’s fireplace (now an air quality regulation in many places), can’t build a spiral staircase from my back deck (as I learn this morning from the San Luis Obispo County planning department), can’t own a gun (New York, Chicago), can’t get plastic bags at the store any more (even though I not only recycle them but reuse them for many of my own purposes), can’t patronize Ubercars because the incumbent taxicab monopoly gets the city council to block the new business in the name of “consumer protection” (naturally), or can’t start a small business except with great difficulty and dead-weight expense to the local bureaucracies?  And on the other side of the ledger, large bureaucratic interventions like Obamacare…stifle marketplace discovery and adaptation….

After a while, you’re not “standing on your own” any more.  The nanny hasn’t put you in prison, but it has changed a lot of things in a significant way.

Big Government, by insisting on making these decisions for ordinary citizens, by relieving men of their own responsibilities and freedom of action—including the freedom to be wrong (at least as liberals like Mathis define “wrong”)—reduces them to dependents on government for their welfare.  Even their Happiness (contra John Adams and the rest of our 18th Century Liberal forebears) is determined by Big Government.

No, Nannies don’t imprison us, at least not by putting us behind bars.  Instead, they imprison us by circumscribing our freedom of thought, our ability to rely on ourselves rather than on those Nannies.  They help us, permanently, to stand so that we never learn to not need their help.

In the end, dependents aren’t “unfree.”  They cannot be, as they have no conception of what it is to be free.

Gun Control and the Purpose of Guns

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Governor Mario Cuomo (D, NY) has demanded we “end the madness now” and surrender control of our firearms to government.

No one hunts with an assault rifle.  No one needs 10 bullets to kill a deer.

The tragic events of just the last few weeks in Newtown, CT, and West Webster, NY, have indelibly taught us guns can cut down small children, firefighters, and policemen in a moment[.]

A couple of things about this.

First, government doesn’t get to dictate to us our purpose in owning firearms or our purpose in owning magazines with capacities of our choosing.  Leaving aside the reason for the 2nd Amendment in the first place, which was to allow a population to protect itself from an overreaching government more than to put victuals on the table, this goes beyond the 2nd Amendment.  If we let government determine our reasons for owning or not owning a thing, it becomes a very short step to letting government determine what me must own or not own, what we must buy or not buy.  Like health insurance.

Second, Cuomo is right that guns can “cut down small children, firefighters, and policemen in a moment.”  When the murdering begins, and help is summoned, the responding police will be only minutes away.  In those intervening moments, though, the killing of the unarmed, including unarmed adults also on the scene, continues apace.  It’s the folks present at the start who are in the best position promptly to interfere with the killer, but when they’ve been carefully disarmed by a Know Better government, they’re as helpless as those children.