Tag: Trump

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Documents Environment Government Legal, Laws, and Regs

Groups Challenge Trump’s Terminator two-fer order

Donald Trump at rally
photo by Gage Skidmore

NRDC, The Communication Workers of America, and Public Citizen just filed a lawsuit against Trump’s infamous “two-fer” rule. This is the rule I’ve designated the Terminator Rule.

From the lawsuit:

To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons.

First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.

The Terminator rule is nonsensical in the extreme and violates all administrative procedure and law when it comes to forming regulations and rules. To instruct agencies to only include costs, not benefits, virtually cripples the federal government.

I have to wonder at this time if Trump even has access to lawyers. If so, where did they get their law degrees? Trump University?

I’ll be following this case on PACER.

Photo by Gage Skidmore CC BY-SA 2.0

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Environment Government

The Army Corps Decision on Dakota has serious ramifications

Dakota pipeline protest
Dakota pipeline protest

The Army Corps of Engineers announced Tuesday it would approve development of the last section of the Dakota pipeline. In a cryptic letter, the Corps announced it was terminating the Environmental Impact Statement process in the Federal Register. The reason? Trump told them to do so.

As former State Department lawyer Keith Benes said to the Washington Post, the Corps can’t just drop the EIS process for arbitrary reasons. And Trump demanding they do is an arbitrary reason.

Keith Benes, a former State Department lawyer who helped oversee pipeline permitting decisions under the Obama administration and now works as an environmental consultant, said in an interview that opponents could mount a strong legal challenge because the only justification the Army gave for terminating its environmental review was the president’s Jan. 24 directive. The agency had been seeking public input on whether to consider an alternate pipeline route, and the comment period was due to close Feb. 20.

“Supreme Court precedent is really clear that agencies can change their minds about policies, but they need to provide a reason,” Benes said, noting that the justices most recently upheld this position in the 2009 case FCC v. Fox Television Stations, Inc. “The president telling you to change your mind is not enough of a justification for changing your factual finding.”

The Corps decision was sudden and unexpected. The Corps had already filed a notice to the Federal Register asking for comments about the EIS scope, the first step in the process. Until this week, there was absolutely no indication that the Corps was planning on terminating the EIS.

Trump’s administration has completely disregarded environmental law, not to mention tribal rights and treaty in this decision. Yes, the decision can and will be successfully challenged in court. But there’s more at risk than our water with this decision.

All Federal Agencies are bound to follow laws in their actions. One of the laws is the National Environmental Policy Act or NEPA. Though agencies can follow different routes within the NEPA framework, they can’t work outside of it. Not unless expressly given permission to with other laws. There is no other law at play with the Corps Dakota Pipeline decision.

The Army Corps not only dropkicked NEPA to the curb, they pissed on it in passing. And they did so specifically because of a demand from the Trump administration. The Trump administration action demonstrates either a profound ignorance of a law that has been in existence for decades, or that the administration considers itself not bound by the law. I suspect the latter.

The Executive Branch of the government’s primary duty is to uphold the laws of the United States. Trump cannot just ignore the laws because they don’t suit him. To do so is to introduce a level of chaos we have never seen before in our history.

Photo courtesy Fibonacci Blue CC BY 2.0

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Government Legal, Laws, and Regs

Don’t Make Gorsuch into a Purity Test for Democrats

Protest against Gorsuch appointment

I normally agree with much of what Think Progress writes, but not in one of its latest pieces on how Senate Democrats stand on Gorsuch appointment. It’s interpretation of their stand is obvious from subheadings of “Team Spine”, “Team ¯\_(ツ)_/¯”, and “Team Trump”.

I am not happy with a Gorsuch appointment because of his strong beliefs against the Chevron Defense. This legal standard has allowed federal agencies to survive challenges to laws typically related to the environment and endangered species. He’s also a conservative judge when we had a chance to appoint a moderate who would actually make decisions based on the law, not ideology.

At the same time, Gorsuch is a much better option than some of the judges Trump was considering. And these latter judges may be up for consideration in the next few years if another Justice retires or dies. Gorsuch has demonstrated a willingness to buck conservatives in decisions if he interprets the law in a way that’s independent of their reasoning.

If I were a Democratic Senator, I wouldn’t vote for Gorsuch, but I wouldn’t filibuster his appointment, either.

By not voting for Gorsuch, I’m signaling that I believe the seat he’ll feel is a stolen seat. I’d want him to know that this “stolen seat” legacy will follow him throughout his years, and his decisions. I’d want him to think about this legacy, especially in light of his professed love of the law. I’d want him to remember that Merrick Garland is highly qualified, more experienced, and was lawfully appointed by the President of the United States.

However, by not filibustering him, I am acknowledging that he is a better option than what we could face from Trump. It’s a long two years until the Senate race when we can hopefully take back the Senate.  The Senate Republicans will destroy the SCOTUS filibuster rule if Democrats filibuster Gorsuch. Guaranteed.

Gorsuch will still be judge, but we’ll have lost the ability to force in-depth, stringent confirmation hearings for future appointees; hearings that may cause some Senate Republicans to question whether what’s being said in these hearings is worth the possible hit in their upcoming re-election bid. Because there’s a whole lot of Republicans coming up for re-election along with the Trump administration in 2020.

With the filibuster in place, Senate leaders are going to be more willing to allow for lengthy, robust questioning during the committee hearings, in hopes of appeasing those who might be thinking of filibustering the appointment. Without the threat of filibuster, why should they waste time when they know the control the votes to just vote the person in?

A longer confirmation process may expose information that not only is game changing for Democrats but could be game changing for some Republicans. Republicans who might actually join the Democrats…especially if they’re coming up for re-election.

That’s my take. Others, including many Democratic Senators, have different takes. Regardless of how each Senator handles the Gorsuch appointment, one thing I’m adamant about: I’m not turning this into a purity test for Democrats.

Purity tests, inspired by Sanders and sledgehammered by Jill Stein, helped us lose the election and put Trump into the Presidency. Trump’s Presidency has already hurt people. Trump’s Presidency has already killed people.

That Garland isn’t a Supreme Court Judge is the Republicans’ fault. That Gorsuch and not Garland is the current choice is Trump’s fault. Trump, his cabinet, and the Republican-controlled Congress are, and will remain, my only targets. My entire focus is to limit the damage this Congress and President can do, and to kick them all out in the next three federal elections. To me, nothing else matters.

Too much is at stake to play purity games.

Photo courtesy of Elvert Barnes CC BY-SA 2.0

 

 

Categories
Government

No, Trump and his Admin are not planning a coup

We have so many real problems and serious dangers associated with a Trump administration partnered with a compliant Congress. We don’t need to generate fictional dangers based on happenstance and conspiracy.

Yonatan Younger wrote a compelling and well-sourced text laying out the various arguments that what Trump’s administration is doing is equivalent to performing a coup. His conclusions:

  1. Trump was, indeed, perfectly honest during the campaign; he intends to do everything he said, and more. This should not be reassuring to you.
  2. The regime’s main organizational goal right now is to transfer all effective power to a tight inner circle, eliminating any possible checks from either the Federal bureaucracy, Congress, or the Courts. Departments are being reorganized or purged to effect this.
  3. The inner circle is actively probing the means by which they can seize unchallenged power; yesterday’s moves should be read as the first part of that.
  4. The aims of crushing various groups — Muslims, Latinos, the black and trans communities, academics, the press — are very much primary aims of the regime, and are likely to be acted on with much greater speed than was earlier suspected. The secondary aim of personal enrichment is also very much in play, and clever people will find ways to play these two goals off each other.

He has valid points. However, where he fails is in overestimating the capability of the Trump Administration.

What can be seen as a deliberate attempt to transfer all power to a tight inner circle is more easily explained by understanding that Trump’s administration is the most inexperienced administration to take over the Presidency in modern times. This inexperience is compounded by the fact that our new President is not the brightest bulb in the box, but believes he is so by his own narcissism. His very volatile, one can even say infantile, mentality, which cannot handle any form of challenge, leads  the more rational members of his team to abrogate responsibility and common sense.

People close to Trump are not only inexperienced, but many came into this administration with extremist, authoritarian views. Yes, Steve Bannon and Mike Flynn come to mind.  They’re as likely to override standard procedure just because they can, rather than because they’re interested in the government working effectively and efficiently. They can do so because the United States government is based on the idea that the best and brightest are chosen to lead—not a bunch of drunk, stupid keystone cops.

Regardless, none of the Trump administration actions presupposes a coup. All of their actions are occurring within a Constitutional framework and abetted by a complicit Congress.

When Trump signed his abysmal executive order leaving many legal immigrants and dual citizens stranded in airports, he did so because he can issue any executive order and the federal government will seek to uphold it unless a court intervenes, or the law is so blatantly outside the norm, federal employees refuse to enforce it. Trump’s Muslim ban is Constitutionally challenged, but not necessarily sufficiently abnormal for federal employees to refuse enforcement.

Courts did intervene. Multiple courts. If there are federal employees who disregard a court order, it’s because they’re confused or incompetent, not because of some grand scheme on the part of Trump/Bannon—both of whom who are also confused, and incompetent.

This fiasco came about because of decisions we voters made. Because we didn’t vote, or because we didn’t care, or Jill Stein convinced people Clinton would be worse, or we wanted to mix things up by putting someone like Trump in charge, we made a choice. Or I should say, people in some states, made a choice.

We have a government led by a profoundly incapable leader, surrounded by zealots and syncopates, with a broken, incomplete leadership. This administration was put into place by an antiquated electoral system that devalues the individual voter. But it’s all legal, and allowed.

Trump’s administration is an abomination, but it’s not a coup.

 

 

Categories
Government

Trump Transition Leaves Chaos in Wake

Storm with lightning

Former EPA staffers said Wednesday the restrictions imposed under Trump far exceed the practices of past administrations.Update:

The AP has news that the EPA must submit all studies and data to review by political appointees.

Former EPA staffers said Wednesday the restrictions imposed under Trump far exceed the practices of past administrations.

Earlier:

It’s not been a week and already the Trump transition team has left chaos in its wake.

It has issued a series of gag orders, which in themselves, aren’t unusual for a transition. As the New York Times notes:

Longtime employees at three of the agencies — including some career environmental regulators who conceded that they remained worried about what President Trump might do on policy matters — said such orders were not much different from those delivered by the Obama administration as it shifted policies from the departing White House of George W. Bush. They called reactions to the agency memos overblown.

However, the orders went beyond the typical “don’t make statements to the press for the department until the department head is in place”  normal for a Presidential transition. They included orders freezing the publication of scientific reports and data, as well as information that is normally given to the public as part of the organization’s functions.  That they did so is probably due to the team’s inexperience, rather than an attempt to block citizen access to the data. The end result, though, is the same: concern and confusion.

Continue reading “Trump Transition Leaves Chaos in Wake”