“there’s little evidence that DHS has any interest or ability when it comes to admitting and correcting its flaws. Even the people specifically assigned to keep an eye on DHS seem more concerned with shielding the department from consequences for bad behavior than with tempering its malignancy.
“The Department of Homeland Security’s inspector general and his top aides directed staff members to remove damaging findings from investigative reports on domestic violence and sexual misconduct by officers in the department’s law enforcement agencies,” Chris Cameron of The New York Times reported earlier this month. Among the information suppressed were descriptions of cash payouts to settle sexual harassment claims without going through formal procedures. “The inspector general, Joseph V. Cuffari, also directed his staff to remove parts of another draft report showing internal investigations had found that dozens of officers working at the agencies had committed domestic violence, but that they had received ‘little to no discipline.'”
The documents were obtained and published by the Project on Government Oversight. Their existence was subsequently acknowledged by Mayorkas in an internal DHS memo. If history is any guide, don’t hold your breath waiting for big reforms. Charles K. Edwards, a former DHS acting inspector general, was charged with stealing proprietary software and confidential databases from the federal government. He pleaded guilty in January of this year.
Don’t harbor too much hope that DHS will improve its respect for people’s rights. A federal agency whose official watchdog hides details of abusive conduct by its employees against their colleagues and family members when it’s not pilfering property can’t be trusted to be diligent about addressing civil liberties violations against the general public. That’s especially true when those violations are seemingly a baked-in part of how the agency justifies its existence. To repeat the Brennan Center’s warning, DHS suffers from “a dangerous combination of broad authorities, weak safeguards, and insufficient oversight,” and it’s not at all obvious how to fix what’s so profoundly broken.”
“Now the West Virginia plaintiffs raise several different legal arguments against the nonexistent Clean Power Plan, several of which could permanently hobble the federal government’s power to regulate if adopted by the Court.
A brief filed by several senior red-state officials, for example, rests heavily on the “major questions” doctrine, a legal doctrine that is currently fashionable among Republican judges but that was also invented entirely by judges and has no basis in any statute or provision of the Constitution.
The major questions doctrine claims that there are fairly strict limits on federal agencies’ power to hand down particularly impactful regulations. As the Court most recently stated in NFIB v. OSHA (2022), “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And several of the plaintiffs in West Virginia argue that the Clean Air Act isn’t sufficiently clear to justify a regulation like the Clean Power Plan.
One problem with this major questions doctrine is that it is vague. The Court has never explained what constitutes a matter of “vast economic and political significance,” or just how “clearly” Congress must “speak” to permit an agency to issue significant regulations. So, in practice, the major questions doctrine largely just functions as a veto power, allowing judges to justify blocking nearly any regulation they do not like. If a judge doesn’t like a particular regulation, they can just claim that it is too big.”
“Other briefs in the West Virginia case suggest that the Clean Power Plan violates the “nondelegation doctrine,” another judge-created doctrine that limits Congress’s power to delegate the power to issue binding regulations to federal agencies. This doctrine is even more vague than the major questions doctrine, and even more capable of being applied selectively to strike down regulations that a particular panel of judges do not like.
As Justice Neil Gorsuch described nondelegation in 2019, a federal law authorizing an agency to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.” How “precise” must the law be? That’s up to judges to decide.
Notably because this doctrine outright forbids Congress from delegating certain powers to an agency, a Supreme Court decision that struck down the Clean Power Plan on nondelegation grounds could permanently strip Congress of its power to authorize the EPA to issue major regulations in the future. Indeed, depending on how broadly the Supreme Court worded such a decision, it could impose drastic new limits on every single federal agency.”
“the issues at stake in West Virginia can be summarized fairly concisely. It is a case about a regulation that does not exist, that never took effect, and that would have imposed obligations on the energy industry that it would have met anyway. It also involves two legal doctrines that are mentioned nowhere in the Constitution, and that have no basis in any federal statute.
And yet, West Virginia could wind up permanently hobbling the government’s ability to fight climate change.”
“While the specific cases in [this] lawsuit are unfortunate, they point to broader systemic issues in the American immigration apparatus. As Reason’s Eric Boehm reported in September, “one of the major drivers of the immigration system’s mounting caseloads,” which involves “a backlog of nearly 7 million applications and petitions,” comes down to “the government’s own, recently beefed-up immigration bureaucracy.”
The Application for Employment Authorization—the document at the heart of these plaintiffs’ woes and USCIS’s processing issues—”was expanded from one page and 18 questions to seven pages and 61 questions,” writes Boehm. Immigration restrictionists often say that hopeful migrants should come here “the legal way,” but the legal way is becoming more and more difficult to navigate. Immigrants who are already here and employed legally are finding themselves unable to continue working.
Unfortunately, the plaintiffs’ struggle is a reminder that the byzantine legal immigration system doesn’t just harm the migrants tangled in red tape—it also harms the native-born Americans who could benefit from their skills and services in tough times.”
“On November 4, the United Kingdom’s regulatory authorities approved molnupiravir as a treatment for COVID-19 infections. Meanwhile, the U.S. Food and Drug Administration (FDA) continues to dawdle over approving medications that were so effective that independent Data Monitoring Committees ruled that it would be unethical to continue giving placebos to study participants.
Speaking of dawdling, the FDA has long stymied the development and roll out of another vital component for the effective use of these antiviral medications: namely, at-home COVID-19 testing. Both pills must be taken by people within 3 to 5 days of exposure or symptom onset to be most effective at preventing hospitalization and death. That means that people need to be able to test themselves quickly, easily, and cheaply.
Up until mid-October, the FDA had approved only two over-the-counter at-home COVID-19 diagnostic tests, one of which has now had to be recalled. In the last month and a half, agency regulators have finally gotten around to authorizing nine more.”
“The Commerce Department’s role and responsibilities have grown in size and complexity, while its capabilities and resources have not. This shift reflects the nature of the competition with China (and one of the reasons the analogy to a “new Cold War” is flawed): Economic security and advantages in non-military technology have outsize importance compared to traditional military strength. That’s still crucial, of course, but much of the day-to-day contest happens in the arena of commerce. Just as other departments, like Treasury and Homeland Security, have been revamped and restructured as their relevance to national security grew, the Biden administration needs to reform the Commerce Department’s resources, structure and authorities if its China strategy is to succeed.”
“The root of the problem is the agency’s self-conception: It sees itself as the ultimate arbiter of what is true and what to do on all matters of infectious disease. In essence, the CDC believes there is no other authority besides the CDC, so it shuts out private labs from the testing process, insists that its faulty tests actually work pretty well long after problems arise, sticks with overly complicated plans that bog down processes, and resists calls to update its guidance, even when that guidance makes living ordinary life difficult or impossible. In a pandemic, where information is scarce and evolves rapidly—and when hundreds of millions of people have to make decisions right now—the agency’s preference for deliberative slowness and absolutist pronouncements would be a problem even if it were largely competent. And as it turns out, the agency isn’t that competent at all.”
“One of Sessions’ final moves in office was to sharply limit when the Justice Department could enter into consent decrees. Vanita Gupta, who ran the Civil Rights Division during the Obama administration, called that policy “a slap in the face to the dedicated career staff of the department who work tirelessly to enforce our nation’s civil rights laws.” The Biden administration rolled back Sessions’ directive, and Gupta is now back at the Justice Department as an associate attorney general.
Sessions was correct that consent decrees should be used judiciously. Justice Department investigations and settlements are a heavy-handed imposition of federal authority. But they can also provide recourse for citizens who have been betrayed by rotten police departments and indifferent local governments.”
“The backlog of forest restoration projects suggests that there are issues on public lands that really need to be addressed, but that is not an argument for creating a vast new federal bureaucracy with as many as 1.5 million government employees.”
“The Biden administration is racing to rebuild senior agency roles depleted by the previous president, hiring at the fastest rate in decades, a POLITICO analysis found.
In the first three months of 2021, the Biden administration hired more than twice as many senior government executives than Donald Trump did in the same timeframe, a staffing spree aimed at rebuilding agencies rocked by turmoil during Trump’s war on the so-called “deep state.””
“The proposed Advanced Research Projects Agency would deliver breakthrough treatments for cancer, Alzheimer’s, diabetes and other diseases and reshape the government’s medical research efforts, by adding a nimble new agency modeled on the Pentagon’s Defense Advanced Research Projects Agency, or DARPA, which laid the groundwork for the internet.
But the way Biden would make “ARPA-H” and its $6.5 billion budget part of the sprawling National Institutes of Health is raising concern within the research community and in Congress about whether it will bring a new approach to old problems or become a duplicative bureaucracy with a lofty mandate.
“Most of us did not support putting this in NIH, for the simple reason that if NIH were capable of doing this, it would have done it,” said one person outside the government familiar with the planning who’s worried NIH’s staid culture and leadership will bog down the effort.
A half dozen individuals both inside and outside the administration who were involved in discussions about the plan told POLITICO there are alternative approaches being discussed, like putting ARPA-H well outside of Washington, to escape some of the Beltway’s inertia and turf battles. More autonomy could, in theory, speed up the way scientific discoveries are turned into drugs and diagnostic tests.
But the prevailing view is that making the new agency part of NIH’s infrastructure will give it a foundation to spring off — and foster communication to head off unnecessary duplication. As Congress prepares for hearings on the first budget proposal, administration officials are expressing confidence ARPA-H can carve out a distinct identity, wherever it is.”