Tag Archives: regulation

It’s Bad

Posted on by
Reply

…when the court pokes fun at a case.

In Bayou Lawn, et al., v Department of Labor, Bayou Lawn, the Chamber Of Commerce of the United States of America, the National Hispanic Landscape Alliance, the Silvicultural Management Associates, Inc., and the Professional Landcare Network, among others, objected to a number of wage rules and bureaucratic requirements related to the H-2B visa program that had been promulgated by DoL.  Among other things, these groups doubted DoL’s authority even to write such rules.

Nor were DoL’s rules insubstantial:

These rules would decrease the maximum number of months an employer may employ an H-2B worker from ten to nine; require employers to guarantee that H-2B employees will work at least seventy-five percent of the hours certified in any twelve-week period and, if not, pay the employees the difference for the time not worked; require employers to pay non H-2B workers’ wages and benefits at least equal to those paid to H-2B workers if the two perform “substantially the same work;” require employers to pay for the round-trip airfare and subsistence costs of H-2B workers; and impose additional bureaucratic requirements, such as the filing of job orders, performing extensive domestic recruitment, and applying for a temporary labor certification.

A Federal court in Florida agreed and enjoined DoL from enforcing its rules.  DoL appealed, even while conceding that it had no actual authority for promulgating these rules [emphasis in the original]:

The DOL does not dispute that it has no express authority to make rules for the H-2B program.

Rather, DoL argued in all seriousness,

DOL counters that its authority may be inferred from the “statutory scheme [that] shows a Congressional intention to grant [it] rulemaking power.”

And here is the scheme that DoL argued [emphasis still in the original]:

[Federal law] instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.”  Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.”  The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

The 11th Circuit thought this pseudo-reasoning…foolish.

We reject this interpretation of “consultation.”  Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the “authority to issue legislative rules to structure [his] consultation with DHS.”  This is an absurd reading of the statute and we decline to adopt it.
…
DOL was designated a consultant.  It cannot bootstrap that supporting role into a co-equal one.
…
DOL next argues that the “text, structure and object” of the INA evidence a congressional intent that DOL should exercise rulemaking authority over the H-2B program. This would be a more appealing argument if Congress had not expressly delegated that authority to a different agency.

And so on.

Just what is the competence level in this administration?

The 11th‘s ruling can be read here and here.

 

h/t Law Blog

Are Bank Depositors’ Funds at Risk?

Posted on by
Reply

…from yet more government confiscation schemes?  It seems that Euro Group President Jeroen Dijsselbloem’s remark that raiding Cypriot depositors’ deposit accounts to bail out failed banks in that country ought to be the model for the rest of the eurozone wasn’t so far off the mark after all, the publicly pronounced opprobrium notwithstanding.  This condemnation, for instance, came from Luxembourg Prime Minister Jean-Claude Juncker:

It disturbs me when the way in which they tried to resolve the Cyprus problem is held up as a blueprint for future rescue plans.  It’s no blueprint.  We should not give the impression that future savings deposits in Europe might not be secure.  We should not give the impression that investors should not keep their money in Europe.  This harms Europe’s entire financial center.

Yet this seems to be the plan, according to Spiegel Online International reporting.

[I]n the European Parliament, politicians are considering ways to make banks bear greater responsibility for their own financial problems.  …  The discussion includes the possibility of future compulsory levies on major depositors[.]

…

Under the proposal, deposits of up to €100,000 would be excluded from any loss participation at a bank.  Any deposits over that amount would only get hit if the losses couldn’t be fully covered through a bank’s shareholders and other creditors.

Why would anyone deposit their money with banks in a political regime in which those deposits are at such risk of confiscation whenever a government finds it…useful?  Wouldn’t such placement be a violation of the fiduciary responsibility of the depositor toward his own investors and creditors?

The Arrogance of Government

Posted on by
2

Here is an example of why we have a Constitution that explicitly limits the power of the Federal government and within that Constitution a Bill of Rights that both explains those limits and explicitly reserves the infinity of remaining rights and powers to the people and to the states.

This example, though, is by one of those state governments, the government of Maryland which also says it’s legal for approved gangs to commit trespass and terrorize children inside their own homes.  State Senate President Thomas V. Mike Miller (D, Dist 27) said this in all seriousness:

We’ve allowed them to manufacture.  We’ve allowed them to sell, and we’ve cut back on their paperwork.

Notice that: government has allowed.  Because government will make these decisions, because what a manufacturer—or anyone—can do is only what a government will permit.

Never mind that the Maryland Constitution says this in Article I of its Declaration of Rights:

That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole….

In other words, government works for the people, and what government can do is what the people will permit, not the other way around.

Oh, wait, this is just Progressives disregarding yet another Constitution that’s more than 100 years old, confusing, and not binding on anything.

Extremist Left on the Prowl, Again

Posted on by
Reply

The Freedom from Religion Foundation is attacking a Viet Nam War memorial, and it’s attacking Coos Bay, OR, for having it.

The atrocity this time is a small memorial erected by the local Jaycees in 1972—as that war was winding down—and that has a Latin cross atop it*:CoosBayVietNamMemorial

FFRF attorney Rebecca Markert, in a letter to City Manager Rodger Craddock, wrote—and she was actually serious

We have no objection to the veterans’ memorials.  Our objection is to the message of endorsement of Christianity over other religions and non-religions.  The Christian-only memorial sends a message that the government only cares about the deaths of Christian soldiers, not Jewish, other non-Christian, and non-religious soldiers[.]

She might want to consult with some of those Jewish, other non-Christian, and non-religious soldiers.  They certainly have been supportive of the Latin cross at the Mojave Desert and Mt Soledad War Memorials.  Maybe it’s because Latin Crosses aren’t Christian symbols, per se, on war memorials; they’re symbols, instead of our fallen and of our respect for their sacrifice and the sacrifice of their surviving families.  That’s a degree of respect the FFRF might want to start showing.

Craddock has the right of it:

With all the issues facing our city, we probably have more important things to do[.]

Indeed.

 

*The photo is by KCBY.

Bias, Redux

Posted on by
Reply

I wrote about a case here, a case involving a Florida Atlantic University student being taken out of class a and facing expulsion because he objected to a class assignment that had him write Jesus’ name on a piece of paper, put the paper on the floor, and then stomp on it.  I closed that post with a note that FAU had “apologized” for their attack on the student.

Now more information has come to light on that case and on FAU’s “apologies.”  The latter are even more cynical than at first appeared.

Before I get to them, though, it’s important to note that the victim in the university’s charade has accepted its apology, so that case is closed.  This post, then, is on what’s masqueraded as an apology in 21st century America; I’ll be using FAU’s versions as illustrations, not to continue berating FAU.

This is more of the first apology in question:

First and foremost, we are deeply sorry for any hurt regarding this incident, any insensitivity that may have been seen by the community and the greater community at large.  We are deeply sorry.  …  We are truly sorry that this incident occurred.

And FAU’s second apology:

We are deeply sorry for any hurt this incident might have caused our students, people in the community, and beyond.  …  [The lesson involved] was insensitive and hurtful and we are truly sorry.  Please note we have not taken any disciplinary action against any student regarding this matter.  ….

Sorry for what, again?  These “apologies” carry not a whit of regret for the actual wrongful behavior—in this case the withdrawal of the student from the class and the university’s subsequent threats of suspension or expulsion.  The second version actually acknowledges those threats by asserting a final lack of disciplinary action, but it then disingenuously segues to other matters—there is no apology for that withdrawal, no apology for the threats of more punishment.

These…statements…don’t even carry any serious expression of regret for the outcomes of that behavior; they have only expressions of caveated sorrow for possible outcomes: “any hurt,” not “the hurt;” “any insensitivity,” not “our insensitivity;” and “may have been seen;” “might have caused.”  These last two are especially egregious.  There was no “may have been” to it, nor was there any “might have.”  The community and the greater community at large were quite vociferous in their expressions of outrage.  The university’s “insensitivity” was plainly seen and objected to; the hurt was palpably real and widespread.  There were no maybes involved; thus, “that was experienced by,” and “that was caused.”

How about a simple, straightforward statement of regret, promptly delivered, and devoid of weasel words and caveats?  A statement along these lines (by the Dean of Students and the Senior Vice President for Student Affairs in this example), issued publicly (as the above versions were), personally, and again in writing (as the first version seems to have been) seems suitable:

On my behalf, on behalf of Professor Deandre Poole, and on behalf of Florida Atlantic University, I apologize to [student] for our treatment of him regarding the Stomp on Jesus’ Name incident.  Our interpretation of the lesson, to actually require those actions, was erroneous.  Worse, our withdrawal of [student] from that class and our threats to suspend and/or expel him simply were wrong, and we should have known better.  I, and we, are sorry for our actions in handling this incident.

Now, back to the university.  FAU Dean of Students Corey King has said he cannot comment on employment matters when asked about Poole’s status at the university following this incident.  This is nonsense.  The comment restrictions are purely a matter of policy internal to FAU; Florida law carries no such restriction (Florida lawyers are free to correct me on this).  As such, that policy can be waived in particular cases; this one seems egregious enough that sanctions taken against Poole, if any, should be public knowledge.  Especially if FAU has chosen to take no action concerning Poole.