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January 14, 2022 10:21 PM UTC

Weekend Open Thread

  • 20 Comments
  • by: Colorado Pols

“I liked beer. Still like beer. We drank beer.”

–Brett Kavanaugh

Comments

20 thoughts on “Weekend Open Thread

  1. Good Morning all,

    An interesting article in the Salem (Oregon) Statesman Journal titled "Gun safety through mandatory arms insurance".

    While the opinion did not say how to get any thing done as far as getting laws passed to implement the idea of gun insurance he did say that it should be expensive and hard to get.

    Sorry I did not get the link to the article.

  2. Best Legal Analysis These days is from Ian Millhiser at Vox: “The Court is barely even pretending to be engaged in legal reasoning.

    Ian writes with clarity and accessibility. Every one of his articles are must-reads. Here is sample:

    In the past, when the Court was unable to come up with principled ways to separate good rules from bad ones, it deferred to the federal agencies that promulgated those rules. The Court reasoned that it is better to have policy decisions made by expert agencies that are accountable to an elected president than to have purely discretionary decisions made by unelected judges with no relevant expertise.

    But the one thing that is apparent from NFIB and Missouri is that this age of deference is over. The opinions suggest that the Court will uphold rules that five of its members think are good ideas, and strike down rules that five of its members think are bad ideas.

    The Court is fabricating legal doctrines that appear in neither statute nor Constitution

    To understand the two vaccination cases, it’s helpful to start with the specific statutory language the Biden administration relied upon when it issued both rules.

    In the NFIB case, a federal law that generally requires OSHA to go through an arduous process to approve new workplace regulations also gives the agency the power to devise an “emergency temporary standard.” It can do so to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful” if such a standard is “necessary to protect employees from such danger.”

    Meanwhile, in the Missouri case, a different federal law instructs the Centers for Medicare and Medicaid Services (CMS) to issue rules that it “finds necessary in the interest of the health and safety of individuals who are furnished services” in institutions that accept Medicare or Medicaid funding (a category that includes most health providers and pretty much all hospitals and other major providers).

     

    1. Kate Riga at TPM is also on top of the story: "Conservative Justices’ Disdain For Agency Power Could Have Implications Far Beyond Vaccine Mandate Decisions"

      The Federalist Society and their billionaire funders (when do we get to call them Oligarchs or Kleptocrats?), are going for the full power grab:

      “Today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators,” Alito continued, giving voice to a worldview common on the right.

      In both the large employers case over the Occupational Safety and Health Administration’s (OSHA) authority and the health-care one over Centers for Medicare & Medicaid Services’ (CMS) power, the conservative justices brought up doctrines that could help them slash agency power. 

      One of those, the major questions doctrine, holds that when agencies make decisions of great economic or political import, Congress must have specifically endowed those agencies with that power to allow it. Vague and ripe for abuse as that doctrine is, nondelegation goes even further, casting doubt on Congress’ ability to delegate regulatory authority to agencies at all.

      Gorsuch and co. are not coy about the implications of these doctrines. Working in tandem, they prevent agencies, in this case OSHA, from doing much of anything. 

      “On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate,” Gorsuch writes. “On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.” 

      1. Before jumping to all sorts of conclusions over the SCOTUS actions and agency powers, it may be wise to review the Administrative Procedure Act of 1946, as well as any subsequent changes to the Act.

        1. IANAL, so I have to rely on experts like Ian Millhiser (who is), and Kate Riga (who is a great journalist).

          The alternative is to simply observe what the Conservative Justices are writing and deciding. If you read those two articles you note that both Millhiser and Riga are taking direct quotes from the Justices

        2. Except Gorsuch has been gunning to overturn Chevron his entire career.  So much for stare decisis.  But you know originalism is a great way to judge, if your definition of judging is to play bad amateur historian

           

        3. Do you think that promulgation of the OSHA vaccine regulation violated the APA? If so, how?

          I'm assuming you are aware that, although the APA generally requires notice and comment for agency rules, OSHA has the power to promulgate emergency regulations that bypass notice and comment. I'll also assume that you are aware that not even the RWNJ majority on the SCt think that the OSHA vaccine regulation violated the APA. To quote from the per curiam opinion:

          Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.”. They must also be developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing. The Act contains an exception to those ordinary notice-and-comment procedures for “emergency temporary standards.” Such standards may “take immediate effect upon publication in the Federal Register.” (cleaned up).

           

  3. CS Indy reporter Heidi Beedle shared straw poll results of 150 votes from El Paso County Republican US Senate forum:

    1st, Hanks 44 votes; 2nd, Bremer 28; 3rd, Campana 20

    Obviously not a statistically valid sample of Colorado likely primary voters, but hey, the first salvo's been fired. Figuratively?

  4. Since we're talking guns and all:  this is what you see on Bremer's eliforsenate.com page (Policy -> Guns) – in its entirety:

    Eli shot a gun in the Olympics. He views guns as a piece of equipment that should be respected and understood as powerful tools. He supports proper training and education around guns and their usage.

    Are kindergartners writing his policy blurbs?  Yowza.  

  5. May I interject here my opinion that Kirsten Sinema has taken hypocrisy to new heights. She claims she just can't support "division".

    Can she tell us how hard she has worked to convince A SINGLE ONE of her Republican colleagues to feel the same way? This is a one way street to this sold out senator. C'mon, Kirsten, surely someone so committed to "bi-partisanship" as you claim to be, can get your like minded friend from West Viginia to help you get even one Republican senator to commit to "bi-partisanship". Really…?…not one?

    You actually haven't tried…have you?

  6. STOP THE STEAL!

    A Florida Republican who was defeated by 59 percentage points in a congressional special election won't concede (msn.com)

    I demand a recount!!!

    I keep thinking back to 21 years ago when the GOP coined a catchy slogan in referring to the Democratic ticket as SORE LOSERMAN after the 2000 election.

    But even Al Gore conceded within five weeks of the election. The dude in Mar-A-Lago still won't even though it's been 14 months since the election.

    Mariner, taking his cue from the dude at Mar-A-Lago, claims that "stuff has been discovered" whatever the hell that means.

    Sounds like they need to book the parking lot outside the Four Seasons Total Landscaping and get Rudy ready with Grecian Formula and Beano.

     

     

    1. The simplest solution is for the Republican election officials to simply claim that the Republican won. Oh wait… they're putting that in place for 2022 and 2024.

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