Category Archives: regulation

Rule Making and Rule Enforcement Pauses

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Commerce has a regulation, enacted in 2019 with effect last March (!), that

allows the government to block foreign telecommunication-gear imports and other business deals deemed a security threat[.]

There’s a clump of US businesses and trade groups that are pressing the Biden administration to “pause” enforcement while it

reviews the best path forward to working with industry on securing the [information and communications] supply chain[.]

There’s a larger problem here.

The objectors raise, entirely legitimately, let’s stipulate, concerns about this telecommunication-gear rule’s supposed excessive breadth of reach. However, willy-nilly cessations of enforcement just because this or that business or group gets a new administration to whom to object, is badly counterproductive. They are disruptive, they reduce predictability of the business environment impacted by that rule/regulation, and they raise the costs of doing business and through that costs to the end buyers.

If a business entity (or anyone else, come to that) has reason to object to a rule or regulation that’s in effect, that entity should take the matter up in a court of law. Appealing to the chief law enforcement facility—the White House—for selective enforcement is not the way to go.

Also: this is another reason for Congress to take back most of its delegation (of rule-making) authority to Executive Branch facilities, and enact—or not—its own, specific, laws that need very little rule making authority by unelected persons.

In the Land of YGTBSM

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Some of you may recall that a few weeks ago, Texas had several days of electricity (and associated natural gas) blackouts, some of those areas lost water for a number of days, and some areas lost Internet connectivity—and Internet-based communications—for some time.

A Wall Street Journal ran an article last week that looked into the sources of the electricity failures; it’s well worth the read in its own right.

A couple of items jumped out at me, though, concerning ERCOT, a State-level regulator about which I’ve written before.

The Electric Reliability Council of Texas activated a program that pays large industrial power users to reduce their consumption during emergencies. But the grid operator, known as Ercot, didn’t know who was being paid to participate in this program and what type of facilities were getting shut off, it has since acknowledged.

How is that possible? How can an entity that bills itself as a reliability facility not know who its members are or what types of facilities it might affect?

It gets better, though, regarding ERCOT’s member facilities.

“We do not know what type of facility it is,” said Kenan Ögelman, Ercot’s Vice Ppresident of Commercial Operations. “We do know [a facility] has qualified and performed to the requirement because we test them, but we don’t know what it is they do.”

How anything be tested if the testing personnel don’t know what [a facility] does?

ERCOT really has to go.

C Boyden Gray vs NASDAQ

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I know who should be winning. I know how the matter should be resolved.

Recall that NASDAQ wants to require companies, as a condition of being listed on the NASDAQ exchange, to have quotas of particular groups of Americans on those companies’ boards of directors:

“at least one director who self-identifies as female,” and “at least one director who self-identifies as Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, two or more races or ethnicities, or as LGBTQ+.”

And

Noncompliant firms must publicly “explain”—in writing—why they don’t meet Nasdaq’s quotas.

Gray’s and his colleague, Jonathan Berry’s, summary of their Comment filing before the SEC is spot on.

Nasdaq’s discriminate-or-explain rule is unlawful, unconstitutional, and unsupported by the evidence. Quota systems like this unjustifiably classify people by arbitrary categories of sex and race in violation of equal-protection principles, and the “alternative” of explaining why a firm won’t discriminate compels speech in violation of the First Amendment.

Yet, this is the damage the social justice warriors that infest our government at all levels would inflict.

A Free Speech Oral Argument

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(Pun not necessarily intended.)

The Supreme Court heard oral argument in the case of a 14-year-old girl who tried out for, and didn’t make, a varsity cheerleading team and subsequently vented her frustrations in a Snapchat rife with “colorful metaphors.”

The girl’s school punished her with a year-long suspension from cheerleading, she demurred from the punishment, lower courts agreed with her, and the school continued its protest to the Supremes.

Attorney Lisa Blatt, representing the girl’s school, had this, among others, at oral argument, as paraphrased by Just the News:

Schools aren’t trying to police political, religious, or critical expression, or impose the heckler’s veto…. They want to address digital bullying, harassment, and cheating….
A student who is upset at her teacher can safely text her views to friends but not picket the teacher’s house, Blatt told Chief Justice John Roberts: the “manner” of speech is the issue, not the offensiveness of it.

And

[Blatt] rejected the suggestion that students can get in trouble for simply sharing unpopular views: wearing a Confederate flag symbol “alone” is protected, but not using it to “terrorize” a black student.

Blatt seemed unable to address those arguments in detail, however.

What about students or teachers who think a student’s positions on police, politics, or religion are themselves offensive?

What about students or teachers who think a student’s disagreement with another student’s (or teacher’s) positions on police, politics, or religion is harassment or bullying?

What about students who think another student’s wearing of a Confederate flag symbol “alone” terrorizes them?

We’re on a short, slippery, downhill road off the edge of a very high, steep cliff when we begin expanding limits on speech.

What Problem is being Addressed?

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What problem are President Joe Biden (D) and his Progressive-Democrat brethren trying to fix?

It’s not the rescue of an already strongly growing economy. The expansion numbers are:

  • GDP growth for Q3-2020 33.4%, Q4-2020 4.3%, Q1-2021 6.4%
  • unemployment at 6.0% and falling as of March 2021
  • labor force participation rate rising from January 2021 61.4% to March 2021 61.5%
  • rising PMI from Jan 2021 59.2 (itself already quite high) to March 2021 64.7

Not the problems of an already waning threat from the Wuhan Virus situation

  • rapidly declining case rates
  • rapidly declining mortality rates
  • accelerating vaccination rates from Operation Warp Speed, begun in high numbers in late 2020

No, the problem Biden, et al., are trying to fix is the impermanence of Progressive-Democrat power.

That’s what’s behind their attempts to

  • eliminate our nation’s borders
  • seize Federal control over States’ election procedures
  • create, through their administrative state, a permanent welfare state
  • restructure and pack the Supreme Court