Friday, November 17, 2017

How Much Should You Pay for a Small Chicken.


I was at dinner last night when I had a chance to chat with a friend.  I would say “old” friend, but at this point in our lives we tend to get a little sensitive about that term.  He is an avid outdoorsman who hunts, fishes, hikes through nature, and used to ride his unicycle around the base we worked at.  This is his story, if I err or embellish in its retelling the fault rests solely with me.
I had asked him how his hunting has been going and he related an episode during a recent Elk hunt.  It was bow season, and they were astride horses when a Grouse flushed and flew into a nearby tree.  He told his mates he could take that Grouse with his bow and arrow.  They, of course, doubted his ability so the challenge was laid. 
As he notched his arrow and as he began to draw the bow he slipped just a bit and the arrow flew into the brush near the ground.  He mentioned these were $20-dollar arrows with broad-head tips.
He notched a second arrow, took aim, and let fly.  It sailed true, but clipped a branch and struck the limb the Grouse was sitting on.  The bird took off but came to rest just a few feet away, apparently satisfied that William Tell was done.  We are now at the $40-dollar investment level.
But he was not done… Taking the third arrow, he took careful aim, considered John Wayne’s advice to Marian McCargo, who played Ann Langdon, in the 1969 movie Undefeated, “windage and elevation Mrs. Langdon, windage and elevation” and let loose a third shot.  This one sailed past the Grouse as well, but the bird fell to the ground.  He told his comrades he had shot the head clean off the bird, they laughed, until he dismounted and retrieved the bird, sans its head.
So, this is how a Grouse dinner comes to sixty (plus) dollars on an Elk Hunt.

Thursday, November 16, 2017

This Reminds Me of a Story


The story in the Sun takes me back to a time in the mid-1980’s, when I worked with a small group of officers and NCOs who coordinated with other organizations on high-priority national missions.  One of the men in the office served as a real mentor for most of us.  He was a Chief Master Sargent, but everyone called him “Duke.”  He has passed away now, but there is a briefing room named to honor him in the Headquarters of Air Force Special Operations Command.
Duke used to tell the story of when he was a younger enlisted man assigned to a unit that was developing a personnel recovery system known as “The Surface to Air Recovery System (or STARS) for short, although most of us referred to by its inventor’s name when we talked about it.  For most of us, it was just the “Fulton Recovery System.”  You can see an early prototype of the device in the fourth James Bond movie “Thunderball,” and the actual system as installed on a specialized C-130 in the John Wayne movie “The Green Berets”
The system was designed to pick up one or two people or about 500 pounds of equipment.
During its development, there came a time they wanted to put some live weight on the end of the line but were not yet ready to risk human life.  To test the weight bearing capability they chose a 500-pound sow as the test subject.  The plan called for the pig to be tranquilized so it would be docile when it arrived at the aircraft.  Duke said the testing was done out of Pope AFB, NC which was surrounded by the many drop zones and gun ranges of Fort Bragg (home of the 82nd Airborne Division).
Duke had us in stitches as he talked about that test.  When the pig arrived at the aircraft they could tell it was no longer fully tranquilized and was one mad-pig.  As they got it onboard the aircraft and tried to guide it into its cage the pig broke loose and went squealing and shitting all over the cargo compartment until it, unfortunately, ran off the ramp and for a short while became a flying pig.
Details of the accident remain sketchy, but I can only assume it led to the expression “I’ll believe that when pigs fly.”

Wednesday, November 15, 2017

Character Counts, But Only for Some


We are now firmly entrenched in the age of sexual outrage, with story after story, and condemnation after condemnation coming from the very same people who for years not only turned a blind eye to the allegations of abuse and assault coming from victims of politicians of their party, but actively engaged in the vilification of those victims.
With the impeachment of William Jefferson Clinton in 1998 we clearly saw the battle ground laid out with one side arguing that character mattered and the other side saying it didn’t.
Now here we are, almost twenty years later and that same battle rages on, only the names and party affiliations have changed.  Lost in today’s world -- is the acceptance of Clinton’s abuses by the party at large when the allegations first began appearing during his 1991 primary run.  This despite the battle over alleged abuse these same politicians and activists had fought over the Clarence Thomas appointment to the Supreme Court.
Clearly, when the issue was with their “guy” the victims didn’t matter at all.  
Unfortunately for all concerned, the arguments made in Clinton’s defense have been accepted by society; all the pontificating and sanctimonious ravings of the political and media elite about the sins of this or that celebrity, politician, or celebrity-politician are viewed through the jaded eyes of people who’ve seen this all before, and realize it is only about power.  Getting power, or keeping power.  There is no morality behind the claims of the moral high ground and faux-moral outrage.

Tuesday, November 14, 2017

Judgment in a Judgmental World.

“Do not judge, or you too will be judged. 2 For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you.” ( Matthew 7, verses 1-2 (New International Version))
I suspect society has, and will always be judgmental.  Probably going back to the earliest family group where the woman said, “you’re not wearing that to the Mammoth hunt, are you?”  If it weren’t so - we wouldn’t have so many instances of mob mentality in our history.
For example, Jesus rebuked the Pharisees who sought to trap him on the law with the stoning of a woman for adultery.  “When they kept on questioning him, he straightened up and said to them, ‘Let any one of you who is without sin be the first to throw a stone at her.’”  (John 8, verse 7  NIV)
Then, of course, we have the French during their first revolution.  Where the mobs took over and the Guillotine became the social event of the day as the nobility was carted in for their amusement.
The question is – What happens to individual judgment when the vocal judgment of an angry society takes over?  
In this day of instant mass communication, it is so easy to play to the emotions of the mob, eliciting outrage or anger from those who have neither the inclination, nor the time to consider consequences, and who believe they will remain anonymous behind the mob as they cast their stones or yell for the beheading of the rich, famous or infamous.
From time to time I see questions from some of those same people who are mystified by the loss of “common sense.”  I guess it would judgmental of me to suggest it is one of the first victims of today’s mob mentality.

Sunday, November 12, 2017

As the Tide Rolls In


This weekend has been an interesting one for the State of Alabama.  It began early with the Washington Post “exposé” of Roy Moore, the Republican candidate for the Senate seat vacated by Jeff Sessions when he became the US Attorney General.  Then on Veterans Day, the two football powers in the state both won.  The first, Auburn University, handed the University of Georgia “Bulldogs” a shellacking that will probably eliminate them from consideration for the College Football Playoffs.
Later, Alabama managed to close strong in their game at Mississippi State University and avoid the stress of overtime. 
Along the way, Notre Dame suffered a beating at the hands of Miami University that has sealed their fate, while Clemson handled Florida State University.
Unless something dramatic happens in the next couple of weeks it looks like Clemson and Alabama will be back in the final four, the only question is who will be the other two teams?  I can already hear the cries for expanding the playoffs to eight teams versus the four they settled on three years ago.
With its win over Georgia, Auburn is making the upcoming Iron Bowl game more interesting than early season predictions suggested it would be, but I am not sure they have the depth to hang with Alabama for all four quarters.

Saturday, November 11, 2017

Ode to the Veteran


Youth, impetuous and fearless, standing on their own
Eyes, cast to a strange world, seeking independence for the first time
Minds, filled with more questions than answers, unsure of what lies ahead
Hearts, beating to be set free, wanting to make a difference in the world

These men and women come from many walks of life
Choosing different paths to a common goal
Bound by a belief in this nation
Driven by a need to be greater than the one

They come with different dreams
Putting service before themselves
Willing to guard the rights of all
Unwilling to let this country fail

Quietly they serve, and quietly they return
Too often with scars
Both hidden and not
They try to put their lives back together

They form the backbone of this country
The strength of character we are
The moral courage we show
The compassion to which we aspire

It is a veteran of war who knows its horror
It is a veteran of peace who knows our honor
It is a veteran of service who knows our sacrifice
It is a veteran who demands justice for the oppressed

As Teddy Roosevelt once said
“The credit belongs to the man who is in the arena”
Our veterans today stand on the shoulders of those before
Our veterans of tomorrow will do the same.

Friday, November 10, 2017

The Destruction of Olympus

     Watching the fall of the famous names of the entertainment and political industries strikes me as similar to watching the destruction of Mount Olympus.  It is as if the Greeks had discovered an unexpected flaw in their gods, and in that instant, they became irrelevant to those who just the day before had built such impressive monuments to them. 
     It began slowly with the vilification of the aging demi-gods.  Once they had been condemned, it moved on to the disgracing of the Titans.  Finally, once the Titans were gone the mob moved to the gods and the leveling of Olympus itself.
     As this pantheon of gods is cast aside who will replace them?  In this age of instant fame and condemnation, the people need their gods to worship and destroy.

Wednesday, November 8, 2017

Living in a Messy World

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“History is written by the winners” is a popular expression.  You have your choice of authors since it has been attributed to Orwell, Churchill, Hitler, Franklin, Bismark, and probably Genghis Khan.  History is always sanitized by those who record it, read it, and teach it.  It is impossible in the written, spoken and or acted word to truly convey the chaos of a place and time in history.  We always lose the tension, the sensory influences, and the real emotions that drove the events of the day.

Today, living with our sanitized history and known outcomes, it is so easy to condemn the overt racism that drove the United States government, led by Franklin Delano Roosevelt, to relocate and imprison over 110,000 Japanese-Americans at the onset of the second world war.  Unfortunately, few alive today can appreciate the emotions of fear and outrage that come when your self-image of the strength of the US, and a bigoted view of the enemy are shattered in a single instance?  Today’s touchy-feely society is all about making right the sins of the past, but they miss the point of those sins.  Man’s inhumanity to man cannot be made right, it cannot be undone, and it must not be excused.  Rather, it must serve as reminders of man’s weakness and inhumanity.  Guide posts and lessons along a path we should learn from as we struggle for a better society.

But we don’t learn from them, we use them as sledge hammers to beat our opponents senseless as we make the same mistakes for different reasons.  I would say our society is at a crossroad, but then I realize we are always at a crossroad where we must choose good or evil, right or wrong, or better or worse.  The only question is who knows which is which?  Perhaps we will never know, until it is all over and the historians tell us who won.

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For example, take the crisis of mental health here in America. 

Progressives in the 19th Century thought it best for society that we condemn those who suffered from various mental defects to large institutions where they could be looked after and controlled for both their own good and good of society.  Various state governments used their dollars to build these institutions and everyone was happy.  That is everyone who was not condemned to these places where care ranged from adequate, through miserable, to horrific.

Then, through the advancements of medical chemistry and pharmacology we invented drugs that would mitigate the outward effects of the mental disease and seemed to be a good path towards solving the social stigma of long term hospitalization.  Progressive people in the 20th Century said we should close these horrid institutions and return the population to live among a society where their care and treatment would be compassionate and the drugs would solve all the problems.   Of course, the politicians were happy to eliminate that expense, so the hospitals were closed and the money used elsewhere, but just how many of our society are now on these wonder drugs?  Did we become the society described by Grace Slick in the song White Rabbit?

Now we are in the 21st Century and the issue of mental wellness seems again at the forefront of our society as it is linked to the murder of so many people in the discussion of gun violence.  On the one hand those who hate guns suggest everything would be better if we just took away all the guns, on the opposing side we have those who suggest only crazy people use guns to kill people, suggesting we should do something about crazy people and then everything would be okay.

Unlike past generations where there seemed to be a more moderate media, centrist politicians, and a compliant society we are now a bi-polar and schizophrenic nation without an ability to act effectively towards one solution.  There are so many voices in our head.  Which one do we listen to?

Wednesday, November 1, 2017

A Few Thoughts on Terror as a Political Tool

Much has been written about the current war on Terrorism.  Terror is the tactic used today primarily by militant Islamic organizations against both non-Islamic and moderate-Islamic cultures to break down the standards of society they are attempting to destroy.

With yesterday’s (10-31-2017) incident in New York City we see another example of how effective this tool is for bringing their cause to the news cycle.  It also illustrates the delusion of politicians, who believe they can stand before the cameras and claim that a “lone-wolf” incident will not affect the city and that city residents will not let this affect them, while at the same time telling everyone that they are dramatically increasing police presence “out of an abundance of caution.” 

The fact the government institutes new protective measures after the attack means the terrorist has achieved their objective.  Terror is the tool of the weak, used against a much stronger foe.  Its sole purpose is to destroy the status quo of society.  It does this through undermining faith in the existing government’s ability to protect its people, altering the nature of that government, or separating the average citizen from those who protect them. 

If you think of terrorism as a political tool, a good simile would be the movie “The Shawshank Redemption” where the hero, Andy Dufresne, tunnels his way out of prison using only a little rock hammer.  It appears to be an impossible task, but each chip in the wall brings him just a little closer to his goal.  So, it is with terror. 

Take just a moment to consider the changes in western society since the first public attack by Islamic terrorists.  Can you remember when that even was?  I think it was in the 1972 Summer Olympics in Munich when Palestinians killed 11 Israeli athletes and a German policeman.  It has continued unabated since then, growing to the point of the destruction of the World Trade Center on 9/11/2001.

Terror has historically been a criminal activity rather than a military one, but as our court systems seem unable to deal effectively with them we have created a separate secret process.  As the press is now fond of saying “Democracy Dies in Darkness” but they have only taken that approach with the current administration.  They were okay with Darkness when someone they liked was in charge.  Since 9/11 our democracy has been affected by terror to a scale few can understand or appreciate.

That will continue, unabated, until we are honest about the source of the terror and its cost.  It will continue until we, as a culture, decide we have had enough and agree on a unified course of action to kill it.  Anything else is akin to playing “WackaMole.”

Tuesday, October 31, 2017

A Philosophical Question on Government


I was thinking about what questions I might ask a candidate if I were given a chance at a town hall meeting, press conference, or public debate, and what would be most important for me to understand in casting my ballot.  There are two questions I don’t think I’ve ever heard the press ask, although I tend to zone out and ignore most televised debates because of their Kabuki like presentation, and I am not sure most of the politicians from either party would answer simply, for in simple answers we would see their agenda too clearly.
The first question would be “What is the role of government?” 
In today's world of political and racial correctness this seems to be a most important question.  Is it the governments job to shape society, or is society and its standards only a medium in which government exists?  Unlike the question of which came first, the chicken or the egg? We know society preexists government, but the two are inextricably intertwined as both are products of the humans involved. 
At our origin, the founders had, just ten years earlier, led a rebellion against a distant authoritarian government.  They were concerned with the rights and individual freedoms of the society, as it existed in the late 18th century.  They built a central government with clear limits to its power through the system of checks and balances, and allowances for the rights of the several states to operate independently.
The preamble of the U.S. Constitution lays out four roles for government, they are “establish Justice, insure domestic Tranquility, provide for the common defence, [and] promote the general Welfare…” Each of these roles come directly from the shared experiences of the political leadership of that society.  Justice was first – for without faith in the equality of justice by the majority of society neither the society nor the government can long exist.  With the Confederation of States the framers learned that only a central power with sufficient strength to settle the inevitable disputes between states, or rebellious factions can ensure society can flourish.  Next, understanding the threats from external powers the need for some kind of standing Army and Navy was a cost best born by the central government and not the individual states.  Finally, they believed government should not interfere with the individual’s rights to health, happiness, and prosperity.
Over the years we have moved from the original vision of the signers to something much more powerful than what our founders could have ever imagined.  It was inevitable this would occur since the strong men of the day sought to expand their authority just as strong men and women of today do.  This leads to the natural question, is the evolution of centralized power a good or bad thing for the health of our society?
The second question I would ask is, how long do you intend to “serve” in office?
When our government began, the individuals elected to office did so with the understanding this was a part-time job and after a couple of terms they would return to private life.  It didn’t take long for those same politicians see they had found the goose that laid a golden egg.  This led to expanding their employment into full time roles and life-long careers where they were able to significantly improve the socio-economic outlook.  Along the way the created a civil service to support their law-making, creating a bureaucratic class that also benefits from the expansion of government.  While it is true there has been expansion and contraction of our government there are two facts that are inescapable.  A contracting government never returns to the same size it was before it was expanded in the first place, and since WW II there has been only a significant expansion in the size and scope of the central government.
Since we appear to have reached a point in our history where we seem unwilling to establish term limits for representatives and senators through the amendment process, our only avenue for limiting government growth is to hold ourselves accountable and not vote f0r incumbents after a couple of terms.  Unfortunately, this works against our self-interest so that is not a likely course of action either.  
 It looks to me as if the expansion of government is likely to continue until such time as it topples from its own weight.

Thursday, October 19, 2017

Things are Changing at the EPA.


A memorandum from the EPA Administrator to his senior staff.  I don't know who made it public (I read it on the Powerline Blog), but it talks about ending a practice known as "sue and settle" where special interest groups and the EPA have worked to bypass public participation and Congressional oversight in rule making.  I am sure some who have supported this process will be concerned and perhaps outraged, but for me this what "open government" should be about.   We should not be formulating policies and regulations behind the closed doors when the law requires something else.  

I am not sure how long with will survive beyond the current administrator, but it is a refreshing piece of common sense.

p.s.  This memo has been altered only for formatting, all the footnotes were included in the original.

TO:               Assistant Administrators
                       Regional Administrators
                       Office of General Counsel

FROM:       E. Scott Pruitt
                       Administrator

DATE:        October 16, 2017

SUBJECT:  Adhering to the Fundamental Principles of Due Process, Rule of Law, and Cooperative Federalism in Consent Decrees and Settlement Agreements


In the past, the U.S. Environmental Protection Agency has sought to resolve litigation through consent decrees and settlement agreements that appear to be the result of collusion with outside groups.[1]  Behind closed doors, EPA and the outside groups agreed that EPA would take an action with a certain end in mind, relinquishing some of its discretion over the Agency's priorities and duties and handing them over to special interests and the courts.[2]  When negotiating these agreements, EPA excluded intervenors, interested stakeholders, and affected states from those discussions.  Some of these agreements even reduced Congress's ability to influence policy.[3] The days of this regulation through litigation are terminated. 

"Sue and settle," as this tactic has been called, undermines the fundamental principles of government that I outlined on my first day:  (1) the importance of process, (2) adherence to the rule of law, and (3) the applicability of cooperative federalism.  The process by which EPA adopts regulations sends an important message to the public:  EPA values the comments that it receives from the public and strives to make informed decisions on regulations that impact the lives and livelihoods of the American people.  The rule of law requires EPA to act only within the confines of the statutory authority that Congress has conferred to the Agency, and thereby avoid the uncertainty of litigation and ultimately achieve better outcomes.  Finally, EPA must honor the vital role of the states in protecting the public health and welfare under the principle of cooperative federalism as prescribed by the Constitution and statutory mandate.

*                     *                     *

This memorandum explains the sue-and-settle directive that I established within the Agency and also describes how the past practice of regulation through litigation has harmed the American public.

Regulation Through Litigation Violates Due Process, the Rule of Law, and Cooperative Federalism

When an agency promulgates a new regulation or issues a decision, the agency should take that action consistent with the processes and substantive authority that the law permits.  An agency, therefore, should ordinarily zealously defend its action when facing a lawsuit challenging that action.  If an agency agrees to resolve that litigation through a consent decree or settlement agreement, however, questions will necessarily arise about the propriety of the government's determination not to defend the underlying regulation or decision.  Indeed, sue and settle has been adopted to resolve lawsuits through consent decrees in a way that bound the agency to judicially enforceable actions and timelines that curtailed careful agency consideration.  This violates due process, the rule of law, and cooperative federalism.

A. The Importance of Process

EPA risks bypassing the transparency and due process safeguards enshrined in the Administrative Procedure Act[4] and other statutes[5] when it uses a consent decree or a settlement agreement to bind the Agency to proceed with a rulemaking with a certain end in mind on a schedule negotiated with the litigants.  Congress enacted the Administrative Procedure Act to provide the American public with notice of a potential agency action, to encourage public participation in the rulemaking process, and to afford federal agencies with the framework to perform careful consideration of all the associated issues before taking final agency action.  Following the legal processes for agency action provides predictability for all stakeholders, ensures that the agency will receive input from all interested parties, and increases the defensibility of an action when facing a procedural challenge.

A sue-and-settle agreement, however, undermines these safeguards.  Using this tactic, the agency and the party that filed the legal challenge agree in principle on the terms of a consent decree or settlement before the public has the opportunity to review the terms of the agreement.[6] An agency can also use consent decrees and settlement agreements as an end-run around certain procedural protections of the rulemaking process.  Even when an agency attempts to comply with these procedural safeguards, the agency typically agrees to an expedited rulemaking process that can inhibit meaningful public participation.  This rushed rulemaking process can lead to technical errors by the agency, insufficient time for stakeholders to submit rigorous studies that assess the proposal, the inability of the agency to provide meaningful consideration of all the evidence submitted to the agency, a lack of time for the agency to reconsider its initial proposal and issue a revised version, and the failure to take into account the full range of potential issues related to the proposed rule.

Sue and settle, therefore, interferes with the rights of the American people to provide their views on proposed regulatory decisions and have the agency thoughtfully consider those views before making a final decision.  By using sue and settle to avoid the normal rulemaking processes and protections, an agency empowers special-interests at the expense of the public and parties that could have used their powers of persuasion to convince the agency to take an alternative action that could better serve the American people.[7]

B. Adherence to the Rule of Law

As an agency in the executive branch of the United States, EPA must faithfully administer the laws of the land and take actions that are tethered to the governing statutes.  The authority that Congress has granted to EPA is our only authority.  EPA must respect the rule of law.  The Agency must strive to meet the directives and deadlines that Congress set forth in our governing environmental statutes.  But we must not surrender the powers that we receive from Congress to another branch of government - lest we risk upsetting the balance of powers that our founders enshrined in the Constitution.[8] Sue and settle disrespects the rule of law and improperly elevates the powers of the federal judiciary to the detriment of the executive and legislative branches.[9]

In the past, outside groups have sued EPA for failing to act by a deadline prescribed under the law.  EPA would then sign a consent decree agreeing to take a particular action ahead of other Agency actions that the public and other public officials considered to be higher priorities.  We should not readily cede our authority and discretion by letting the federal judiciary dictate the priorities of the Administration and the Agency.

Taken to its extreme, the sue-and-settle strategy can allow executive branch officials to avoid political accountability by voluntarily yielding their discretionary authority to the courts, thereby insulating agency officials from criticisms of unpopular actions.  Equally troubling, sue and settle can deprive Congress of its ability to influence agency policy through oversight and the power of the purse.  Sue-and-settle agreements can also prevent subsequent administrations from modifying a particular policy priority, approach, or timeline.[10]  The founders of our nation did not envision such an imbalance of power among the federal branches of government.

EPA must always respect the rule of law and defend the prerogatives of its separate powers.  EPA, therefore, shall avoid inappropriately limiting the discretion that Congress authorized the Agency, abide by the procedural safeguards enumerated in the law, and resist the temptation to reduce the amount of time necessary for careful Agency action.

C. Embracing Cooperative Federalism

Many environmental statutes empower the states to serve as stewards of their lands and environments.[11] Embracing federalism, EPA can work cooperatively with states to encourage regulations instead of compelling them and to respect the separation of powers.[12]  Past sue-and-settle tactics, however, undermined this principle of cooperative federalism by excluding the states from meaningfully participating in procedural and substantive Agency actions.

When considering a consent decree or settlement agreement to end litigation against the Agency, EPA should welcome the participation of the affected states and tribes, regulated communities, and other interested stakeholders.  This should include engagement even before lodging the decree or agreement, where appropriate.  These additional participants to the negotiations can voice their concerns that the agreed-upon deadlines will be reasonable and fair, permitting adequate time for meaningful public participation and thoughtful Agency consideration of comments received.  EPA must also seek to collaborate with the states and remain flexible when ensuring compliance with environmental protections.

Conclusion

By emphasizing the importance of process, adhering to the rule of law, and embracing cooperative federalism, EPA increases the quality of, and public confidence in, its regulations.  Through transparency and public participation, EPA can reassure the American public that the rules that apply to them have been deliberated upon and determined in a forum open to all.  Finally, the federal government must continue to improve engagement with the states, tribes, interested stakeholders, and regulated communities, especially when resolving litigation.  The steps outlined in my directive today will help us achieve these noble goals and continue to improve us as an Agency.


[1]  When litigants enter into a consent decree, they agree to resolve the litigation through a judicially enforceable court order; if one party fails to abide by the terms of a consent decree, that party risks being held in contempt of court.  A settlement agreement generally resolves legal disputes without a court order; if one party fails to abide by the terms of a settlement agreement, the aggrieved party must petition a court for a judicial remedy.
[2]  These outside groups often file lawsuits in federal district courts that the litigants believe will give them the best chance of prevailing - not necessarily in the forum where the agency action at issue is most applicable - and ask the court to enjoin the agency action on a nationwide basis.  Nationwide injunctions, in general, raise serious concerns about the validity and propriety of these district court actions
[3]  The sue-and-settle phenomenon results in part from statutes that empower these outside groups to file a lawsuit against a federal agency when that agency fails to meet a statutory deadline and then reward these individuals by allowing them to recover attorney's fees for "successful" lawsuits
[4]  Pursuant to the Administrative Procedure Act, an agency must publish a general notice of proposed rulemaking in the Federal Register and include the following information:  "(1) a statement of the time, place, and nature of public rulemaking proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." 5 U.S.C. SS 553(b).  Additionally, the agency "shall give interested persons an opportunity to participate in the rulemaking through a submission of written data, views, or arguments with or without opportunity for oral presentation."  Id. SS 553(c).
[5]  The statutes include the Paperwork Reduction Act (44 U.S.C. SS 3506), the Regulatory Flexibility Act (5 U.S.C. SS 603), and the Unfunded Mandates Reform Act (2 U.S.C. SS 1535).
[6] In certain circumstances, the Agency must permit the public to comment on the proposed settlement.  See, e.g., Clean Air Act Section 113(g), 42 U.S.C. SS 7413(g) (requiring that "[a]t least 30 days before a consent decree or settlement agreement of any kind under [the Clean Air Act] to which the United States is a party (other than enforcement actions) . . . is final or filed with a court, the Administrator shall provide a reasonable opportunity by notice in the Federal Register to persons who are not named as parties or intervenors to the action or matter to comment in writing").  While the Agency has made changes to proposed consent decrees in response to comments receiving during this process, the Agency understands that numerous stakeholders lack faith in the effectiveness of this comment opportunity because the Agency and the settling litigants have already agreed in principle to the proposed settlement.
[7]  "The greatest evil of government by consent decree . . . comes from its potential to freeze the regulatory processes of representative democracy.  At best, even with the most principled and fair-minded courts, the device adds friction. . . .  As a policy device, then, government by consent decree serves no necessary end.  It opens the door to unforeseeable mischief; it degrades the institutions of representative democracy and augments the power of special interest groups.  It does all of this in a society that hardly needs new devices that emasculate representative democracy and strengthen the power of special interests."  Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1136-37 (D.C. Cir. 1983) (Wilkey, J., dissenting).
[8]  In The Federalist Number 47, James Madison wrote: One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive and judiciary departments ought to be separate and distinct.  In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty.  The several departments of power are distributed and blended in such a manner, as at once to destroy all symmetry and beauty of form; and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which the objection is founded.  The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.  Were the federal constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.  I persuade myself however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies, has been totally misconceived and misapplied.  In order to form correct ideas on this important subject, it will be proper to investigate the sense, in which the preservation of liberty requires, that the three great departments of power should be separate and distinct. The Federalist No. 47 (James Madison) (emphasis added).
[9]  "The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other."  Thomas Jefferson to George Hay, 1807. FE 9:59 (emphasis added).  "The Constitution intended that the three great branches of the government should be co-ordinate and independent of each other.  As to acts, therefore, which are to be done by either, it has given no control to another branch. . . .  Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions. . . .  From these different constructions of the same act by different branches, less mischief arises than from giving to any one of them a control over the others."  Thomas Jefferson to George Hay, 1807. ME 11:213 (emphasis added).
[10] "The separation of powers inside a government - and each official's concern that he may be replaced by someone with a different agenda - creates incentives to use the judicial process to obtain an advantage.  The consent decree is an important element in the strategy. . . .  It is impossible for an agency to promulgate a regulation containing a clause such as 'My successor cannot amend this regulation.'  But if the clause appears in a consent decree, perhaps the administrator gets his wish to dictate the policies of his successor."  Frank Easterbrook, Justice and Contract in Consent Judgments, 1987 U. Chi. L. Forum 19, 33-34 (1987).
[11]  Both the Clean Air Act and the Clean Water Act contain specific provisions that enlist the states to take primary responsibility of environmental protection.
[12]  In Federalist Number 51, James Madison wrote: In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.  Second.  It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.  Different interests necessarily exist in different classes of citizens.  If a majority be united by a common interest, the rights of the minority will be insecure. The Federalist No. 51 (James Madison) (emphasis added).

Tuesday, October 17, 2017

I Wonder...


If we know gold can be found in the collision of two neutron stars will there be a gold rush to space?  (Stars collided 150 million years ago, so this is a recent event in the age of the cosmos, but the light is just now arriving in our little corner of it.)

Why the NFL doesn’t move to robot players?  They had it in the Jetson’s so the technology must exist.  As a first step, we could go to exoskeletons and remove the need for 300+ pound behemoths. 

Why the NFL defenses can’t use tiny surface to air missiles as part of their aerial defense?  In open air stadiums, it would make the blimp ride much more exciting.

If a “non-binary” individual goes missing how will they be described?  Missing, a 37-year old what?  If they are found, will they have to prove themselves with a non-binary ID?

Monday, October 16, 2017

A Faustian Bargain, and Buyer’s Remorse


The idea of Faust comes from a German legend, where Faust was a great scholar who was unhappy with his life.  In a bargain with the devil he exchanges his soul for unlimited knowledge and pleasure.  Faust, with the aid of Mephistopheles, corrupts those he comes into contact with. [i]

Isn’t this the storyline we see playing out in today’s reporting of the Weinstein scandal?  In this case, the only question is who is playing the role of Faust and who is Mephistopheles?  The news would have us believe Weinstein is Faust and he has corrupted all the women, but is that true?

The idea that actors and actresses have exchanged sex for fame was familiar to us since I was a young boy seeing the images of beautiful women on the screen.  The idea of the casting couch and the role it played in securing prime roles was not a secret even to a hick from upstate New York.  So, I have to ask the question; were the young men and women drawn to an industry known for its sexual proclivities naïve or where they entering into their own bargain? Who was really selling their soul for fame and riches?

Don’t mistake my question as sympathy for Weinstein.  His abuse of those who were powerless to stop it is terrible.  I am just pointing out he was and is a part of a much larger corruption where morality is routinely sacrificed for personal desire.  We see this in the condemnations of those who now seek to distance themselves, but counted him as a friend when they wanted his money or influence.

The only innocents I see in this whole affair are the children cast to the wolves by their parents in an attempt to gain their own riches.  Mayim Bialik (“Blossom” and now “Big Bang Theory”) wrote an Op-Ed piece in the NY Times[ii] where she discusses her experiences, starting as an 11-year old in an industry that objectifies women.  She is being condemned by many for blaming the victims. 

How better to ensure a continuation of the status quo than to hang up a single evil villain, beat our collective breasts about his sins, and then -- when the dust settles, return to business as usual.  I think it would be equally effective if we just bound his hands and threw him off the castle rampart into the moat.  If he drowned we would forgive him, if he lived we would repeat the process.  Unfortunately, most of the castles are occupied by those who’ve made their own bargain.

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