The holiday was over, and the Writer’s Section at Socotra House was talking about the overthrow of the United States government the other day. Oh, heck. We talk about it all the time, since it already happened. Splash had found a site called “Legal Insight.” It talked about it in a piece published just before tax day in 2013, which doesn’t mean they thought it up then. They just reported how it works. At issue then was the continuing fight about US oil and gas extraction. You will recall there was a lot going on then, since the UN-sponsored Conference of the Parties was coming up in 2015, and with the planet ending last year, it was important to get a process in place to regulate greenhouse gases.
It is possible you might note that we breath all of those gases and expel them, too. We have done so as a species for several hundred thousand years. The COP labored mightily, and produced the 2015 international agreement on C02 levels. We apparently are going to go to zero emissions in 2050, a couple decades after the predicted end of the world, but with a good-faith effort to cut it in half by the end of this decade. It is a sort of mystifying process, since it was not submitted to the Senate for approval as a “treaty.” But some people thought it was a great idea, and even if it destroyed the American economy it was worth it.
Unless, of course, you happen to live in America and will have to deal with the consequences. If you think the Writer’s Section is unbalanced, or wearing foil hats, we are just trying to work through the consequences of the Revolution that already happened. An example of how our government now works was recently exemplified by President Biden, who we respect for his candor. At one of his infrequent press conferences, Fox correspondent Peter Ducey asked him about reports that the Department of Justice was considering paying illegal migrants $450,000 for the inconvenience of being separated from their children.
The President’s reaction was just about what ours was. “Garbage!” he said firmly. “Not going to happen.” We generally agreed with the first part, since a couple of the brighter members actually had managed to save an amount that size across the entire span of their taxpaying lives. We were a little disconcerted to have all that “walked back” a couple days later, when clarification came from whoever does the words on the President’s teleprompter.
Clarification was useful. The actual amount under discussion was close to a million bucks, since both parent and child would be entitled to the $450K. It is apparently still going on in some strange conference process between part of the Executive Branch and some advocacy attorneys we have never heard of.
Splash was a little agitated about the matter, since he only has $126.35 in the savings account, or had, last time he was able to find the bank book. He is grateful about the total amount of compensation under this scheme would only amount to a billion bucks. Considering we are contemplating spending trillions of bucks on other important stuff we can’t afford, it really is chicken feed. And we are in favor of keeping the chickens fed. Generally, anyway, though we do have concern about what the birds are being presented for edibles. DeMille noted pensively that American citizen families are separated all the time due to legal problems, and despite the precedent, the immigrant issue will likely be used as the basis to expand the scope of compensation.
We ran it through Legal before we discussed anything else. That is standard procedure these days. We have been warned by one of the Offices we used to serve that criticism of current officials could wind up with lawyers attempting to put us in jail. Generally speaking, we are opposed to that, and the Legal folks agree. They had an attachment to the memo they drafted during the week that explained it. They used simple language, since their opinion about our collective intelligence is naturally suspicious.
They kept it short, too, which is a benefit in a busy end-of-week post-holiday legal opinion. They said something called “sue and settle” (S&S) has replaced the old way government used to work. It is simple and effective. In the old days, Congress worked all these issues. You can imagine how this issue would have been handled in the old rules. Some Congressperson would draft a bill addressing the alleged problem, which amounts to giving foreigners an amount of cash about ten times what the average American family has been able to squirrel away over a lifetime.
Then, the new Bill would then work through the subcommittee, where other members would call the agreement what the President termed it before he found out what he hadn’t been told. If the Bill made it through the full Committee- and remember, this is happening in both House and Senate- and then down to the Floor for debate you can imagine what the Member reaction would be, since their vote on the matter would be a matter of record and a factor in their re-elections.
We agree that things are pretty complicated in the world’s most successful Republic. That is why the whole S&S thing has become so popular. It is largely invisible, and that was one of the same motivations for the gigantic Bills that come at the end of the legislative year. There is a lot of stuff contained in a document 2,000 pages long, and no reasonable person could be held responsible for a few bad paragraphs, right?
The interesting thing about the Revolution is that it is going on across the span of the Leviathan we have created to manage all those 2,000 pages of laws. Immigration is just one of the issues that contains dozens of other issues. There is talk about giving some sort of amnesty to eight million people who arrived here in violation of our laws. That is the equivalent of the total number of people currently in Los Angeles, Chicago and Philadelphia combined. And that bewildering course of affairs is just in that issue area.
Saving the planet is just another issue area, but the same tactics are used by pro-regulatory environmental groups, thank goodness. These groups, as well as regulators, are on the lookout for potential sue-and-settle tactics that threaten not only the industry’s legitimate business interests, but also proper rulemaking procedures and the due process protections those procedures afford. Because of the emergency.
That is the other side of S&S. The Environmental Protection Agency, which we all support, is often threatened with suit for a variety of alleged failures to meet mandatory statutory deadlines for new regulations. In many cases, the agency action (or inaction) at issue is controversial and wouldn’t survive open debate.
That wasn’t stopping Rocket. He sputtered “That includes major new regulatory programs that impose high costs on the regulated community. That is naturally passed on to consumers. The nature of the controversy is fueled by the deep pockets of the government. Almost unlimited. Plus, they can always hire more lawyers to talk to lawyers funded by the equally deep-pocketed aggrieved parties to arrive at settlements that would not survive an honest public policy debate. Especially when the out-of-sight settlement is something the government agency is already predisposed to regulate but has delayed in doing so for political reasons.
This didn’t happen by accident, and there are protections in law like the Administrative Procedure Act, the Regulatory Flexibility Act, and the Unfunded Mandates Reform Act to ensure there is oversight and compliance. It must be an accidental feature that emergencies afford little or no opportunity for review by the Office of Information and Regulatory Affairs (OIRA) in the White House. Or any place else, for that matter.
Loma roused from his morning torpor and proved he had been listening. “The emergency system,” he said firmly “can result in rulemaking that elevates special-interest, pro-regulatory priorities over the public interest. It also deprives the public, regulated entities and OIRA of the opportunity to participate in the regulatory process.” The effort made him sigh with the exertion. “The settlements also can severely limit the regulatory discretion of subsequent administrations.”
So, we have in our little lives watched the successful overthrow of what we used to know as “law and order.” But that is just another issue area. Rocket saw an emergency notice published by the City of Los Angeles. “Faced with rising crime and reduced police budgets, the city recommends that if someone attempts to rob you, submission is the proper response. Otherwise someone could get hurt.”
Splash laughed. “We already did. But look on the bright side. If we could afford lawyers, we could S&S, too.”
“Could we sue to make Belmont Farms Distillery stay open on Sundays?”
“That is what sue and settle is all about. Well, sort of. We might need an emergency.”
Copyright 2021 Vic Socotra
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