Lake Erie Conservative

thoughtful discussion(s) about issue(s)

Posts Tagged ‘administrative law’

… Once Again ! Another ObamaCrap Power Grab [#Clean Power Plan][#EPA]…

Posted by paulfromwloh on Thursday,August 13th,2015

.. well , we knew that this power grab was coming . It does not make it any easier ..

.. it does not make the impact of a power grab like this one any easier to take , though ..

.. what is worse is that it relates to climate change . We all know that the so – called ” climate change ” theory is a scientific fallacy . The ObamaCraps are still going ahead with their radical activism . They act as if it is actual fact ..

.. [h/t — HotAir.com]..
.. [link] to the blog post // video clips ..

.. well , what is it ? Plain and simple , it is a ” reduction ” of 32 % in carbon dioxide emissions . This is to be accomplished over the next ten years . Evidently the EPA is not kidding around . Either the states [either individually , or as a group] co – operate , or the federal government will impose a plan on them ..

.. you can pretty much forget coal – fired energy generation . There is virtually no way that any state can or will meet their goal with any use of coal – fired electricity being used . So , they will have to do something else to do it . Obviously something much pricier ..

.. not only that , it forces a market in the use of renewable energy . Either wind energy , solar energy , geo – thermal , or something else . But renewables must be used , whether a state likes it or not …

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… An Interesting Court Case [#challenge to obamacrapcare]…

Posted by paulfromwloh on Friday,July 11th,2014

.. Senator Ron Johnson faces a problem .

.. can he establish ” standing ‘ in this court case ?

.. to be honest , I am not sure . But , if he can , then the Government is in very big trouble …

.. [h/t — Newsmax]..
.. [link] to the news article ..

.. His Lordship and his minions played fast and loose with the law . So , in theory , their handiwork should be easy to overturn . No , it is not so easy …

.. When ObamaCrapCare was just a bill , Chuck Grasseley was real sneaky . He slipped in a provision into the bill , and it was accepted . Except that the DummyCraps did not exactly read his handiwork .. Why ?

.. Grasseley ‘ s provision forced Members of Congress and their staffs out of their cushy health insurance plans . These items , offered through the Federal Health Insurance BEnefit program , gave the beneficiearies very generous health insurance benefits . also , they were subsidized , to the tune of 75 % …

.. except Grasseley ‘ s handiwork force the denizens of Crapitol Hill out of these plans . Then , the ObamaCraps pulled a fast one , in contravention of the ObamaCrapCare bill , and allowed the denizens to still get their subsidies , even though doing so would be unlawful ..

.. now , you understand Senator Johnson ‘ s problem . Can he win his fight ? I hope so …

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… Ambiguity in the Clean Air Act [& Amendments] …

Posted by paulfromwloh on Saturday,July 5th,2014

.. yes , it does matter .

.. you might ask , huh ? ..

.. [h/t — m.NationalReview//BenchMemos]..
.. [link] to the blog post …

.. an agency gets a certain amount of latitude in how to interpret a statute . That latitude , due to a certain US Supreme Court case [Chevron v N.R.D.C.] is referred to as ” Chevron deference . It is actually quite simple , as it is a two – prong test . Part One is Congressional intent . If Congress has clearly spoken , then that is it . Part Two is where things get a lot more dicey . If things are ambiguous , then is the agency ‘ s ” construction ” of the meaning reasonable and applicable to the statute . If not , then , down the drain …….

.. It matter a lot , because the ObamaCrap E.P.A. is using that ” Chevron Deference ” in order to be able to regulate ” greenhouse gases . ” If their interpretation is struck down , as I think is really possible , then His Lordship ‘ s ” Climate Change ” diktat is toast …

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… Bill , I think that You are Wrong …

Posted by paulfromwloh on Tuesday,February 11th,2014

.. what he and Dr. Charles Krauthammer were brawling about tonite on ” the O Reilly Factor ” was about the ObamaCrap Administration ‘ s ability to administratively fiddle around with ObamaCrapCare ” on the edges . ”

.. What I believe Bill was talking about was what is known as , legally , as Chevron deference . This refers to a legal case from almost 30 years ago , where the N.R.D.C. [the National Resources Defence Council] challenged an admininstrative action of the Environmental Protection Agency under Ronaldus Magnus .The N.R.D.C. did not like the enforcement action by the E.P.A. , and challenged the government in court .

.. as it turns out , I checked , and I did not have it quite right . The N.R.D.C. won at the District Court level . Since Chevron was an affected party , they could bring an action in court , and they did . They appealed , and the case went all the way to the U.S. Supreme Court .

.. This one went all the way to the U.S. Supreme Court . The N.R.D.C. ended up losing its case , and the legal precedent of administrative judgement was created . This is where the term ” Chevron Deference ” comes from . It is a two – prong test . In case you might wonder , the current IRS challenge to the tax subsidies , Halbig v Sebelius , is being fought under this legal standard .

.. [h/t — Wikipedia]..

.. [link] to the article .. remember , it is Wikipedia . However , when I have consulted it , I have had good result from it . Just take the results from your search with a grain of salt …

.. Back to Chevron . Well , it is a two – prong test . I am lifting the following from the Wikipedia article on ” Chevron Deference , ” because it is fairly easy to understand , even for those of us with limited to no legal knowledge …

Holding[edit]

The Court, in an opinion by Justice John Paul Stevens, upheld the EPA’s interpretation. A two-part analysis was born from the Chevron decision (called the “Chevron two-step test”), where a reviewing court determines:

(1) “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.”

“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather,

(2) [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).

.. LEC again — basically in (1) , if Congress has spoken , that is it , folks . It is the end of the matter . If they have not , then you move on to (2) . In (2) , if the statute is silent , or is ambiguous , then is it a reasonable setup of the statute ? If not , then the agency ‘ s interpretation and action falls …

Importance[edit]

Chevron is probably the most frequently cited case in American administrative law, though some scholars suggest that the decision has had little impact on the Supreme Court’s jurisprudence.[4]

Eighteen years later Chevron itself was able to invoke Chevron deference to win another case before the Supreme Court. In a unanimous decision, the Court applied Chevron deference and upheld as reasonable an Equal Employment Opportunity Commission regulation, which allowed an employer to refuse to hire an applicant when the applicant’s disability on the job would pose a “direct threat” to the applicant’s own health. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002).

Three recent decisions of the Supreme Court may limit the scope of administrative agency actions that receive Chevron deference to agency decisions that have the “force of law.”[5] This new doctrine is sometimes referred to as “Chevron step zero.”[6] Thus, for example, a regulation promulgated under the “notice and comment” provisions of § 553 of the Administrative Procedure Act would be likely to receive Chevron deference, while a letter sent by an agency, such as a U.S. Securities and Exchange Commission (SEC) “no-action” letter, would not.[7] However, an agency action that does not receive Chevron deference may still receive some degree of deference under the old standard of Skidmore v. Swift & Co., 323 U.S. 134 (1944).[8] The majority in Christensen v. Harris County, 529 U.S. 576 (2000) suggested that Chevron deference should apply to formal agency documents which have the force of law while Skidmore should apply to less formal agency documents in an attempt to draw a bright line for the question of “force of law” under Chevron step zero.

.. LEC here again — In this , it is the difference whether the agency ‘ s interpretation and decision carries the ” force of law . ” If it does , then Chevron deference . If not , maybe some level of deference , based upon the old standards …

.. in summation — I think what the ObamaCraps are doing with ObamaCrapCare is a gross misuse of ” Chevron Deference . ” The big thing for them is if someone is harmed by their actions ? Someone just might … . When someone is , then they have what is legally known as ” standing ” to challenge the action …. God in Heaven help the ObamaCraps if someone does , because they will lose , and lose badly …

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