Administrative state

Emerging uses of “emergency”

Featured image Two of the Biden administration’s vaccine mandates came before the Supreme Court for oral argument yesterday, one arising under OSHA and the other arising under the auspices of HHS. I thought the first of these cases raised the question of administrative law regarding the lawful scope of agency authority in an unusually pure form. Listening to the oral argument in NFIB v. OSHA, however, I have been disabused of the »

A special session

Featured image The Supreme Court has set a special session to hear oral argument in vaccine mandate cases on January 7. The cases to be heard involve the OSHA vaccine mandate that I wrote about last week here (decided by the Sixth Circuit in a 2-1 opinion) and the CMS mandate promulgated as to health care workers (essentially stayed in the Fifth Circuit and the Eighth Circuit; the Faegre Drinker firm at »

Sixth Circuit lifts mandate stay

Featured image John and I have declared the war on Covid over, but President Biden has painted the administration into the proverbial corner. He promised to extirpate the virus and means for us to die trying. In his blandly titled September 9 “action plan” titled Path Out of the Pandemic, Biden directed OSHA to issue a rule requiring private sector employers with 100 or more employees to mandate that employees either get »

Oh my, Omarova

Featured image Saule Omarova is the Biden administration’s nominee to head the Office of the Comptroller of the Currency. The OCC is not a well known or well understood agency, but it is the chief regulator of national banks. It is not a bureaucratic backwater or political dumping ground. I got to know it when I worked at TCF Financial Corporation (now absorbed into Huntington Bank). Omarova is of course the proud »

Everything not forbidden…

Featured image We seem to be going down the path leading to everything not forbidden is compulsory. The Biden administration is writing one version of the totalitarian rule into administrative law with the OSHA “emergency temporary standard” requiring employers with 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect »

(Not that) Bill Walton with Philip Hamburger

Featured image Philip Hamburger holds an endowed chair at Columbia Law School and is author, most recently, of Purchasing Submission: Conditions, Power, and Freedom, just published by Harvard University Press. I was a fanatic admirer of Professor Hamburger’s Is Administrative Law Unlawful? (2014), which I reviewed for National Review in “A new old regime.” I thought it was the most important book I had read in a long time and still do. »

That’s easy for him to say

Featured image On Thursday President Biden spoke at the Clayco data center construction site in Elk Grove Village, Illinois. Biden was promoting compulsory Covid vaccinations (White House transcript here). Has OSHA — the federal agency assigned to promulgate the regime of compulsory vaccinations on the private sector — gotten around to issuing the “emergency” regulation Biden has ordered up? Answer: No. On Thursday the White House also issued a 26-page report on »

The Omarova Thesis

Featured image There must a Robert Ludlum series lurking in the saga of OCC Comptroller nominee Saule Omarova. One installment of the series would be The Omarova Thesis — the thesis she wrote at Moscow State University on the Lenin Personal Academic Scholarship: “Karl Marx’s Economic Analysis and the Theory of Revolution in The Capital.” It must have been a good one — so good that she has scrubbed it from her »

A Census Mystery

Featured image Headline of the week: Census Bureau statisticians and outside experts are trying to unravel a mystery: Why were so many questions about households in the 2020 census left unanswered? Residents did not respond to a multitude of questions about sex, race, Hispanic background, family relationships and age, even when providing a count of the number of people living in the home, according to documents released by the agency. Statisticians had »

Mask the CDC

Featured image As the Biden administration secretly redistributes illegal aliens carrying the Covid virus around the United States, the CDC has issued a new set of “interim public health recommendations for fully vaccinated people.” The CDC has promulgated the recommendations in response to the big nothing of the Delta variant applicable to all those in K-12 schools and counties with high or substantial levels of viral transmission — regardless of vaccination status, »

CRB: Progressively worse

Featured image The Claremont Review of Books has just published its new (Spring) issue. I reviewed the issue in galley to pick out pieces to roll out for Power Line readers this week (subscribe here for $19.95 and get online access thrown in for free). The issue weighs in at 114 pages. It took me a little longer than usual to get through the issue, which actually arrived in subscribers’ mailboxes late »

Civil War on the Left (77): Neera Miss Edition

Featured image I still argue that the divisions within the Democratic Party are going to make the Biden months (heh) in office difficult to manage. Don’t be fooled by the hand-holding Kumbaya drum circles you see right now. If you want an indication of this, look at the announcement today that Neera Tanden’s nomination to head OMB is being withdrawn. Her nomination was in trouble with Republicans from the start, but after »

A Telling Sign of Biden’s Radicalism

Featured image Back in January 1993, when Bill Clinton ended 12 years of medieval rule under Reagan and Bush, the famed environmentalist David Brower published the following full-page ad in the New York Times: What was so brain-damaging about “economics”? Cost-benefit analysis, that’s what. The Reagan Administration had ordered the Office of Management and Budget to conduct cost-benefit reviews of proposed government regulations, and if they cost more than they benefits provided, »

The original progressive dream has become a modern nightmare

Featured image George Will has an excellent column in which he presents the arguments of Philip Howard, as set forth in an article called “From Progressivism to Paralysis.” Howard contends that modern government “is structured to preempt the active intelligence of people on the ground.” Moreover: »

Inside the COVID Pork Bill

Featured image Did you know that today is National Bacon Day? I didn’t—but then I tend to think that every day is national bacon day. Or at least ought to be. Maybe when Homer Simpson is president. In any case, our mind is on pork a lot at the moment because of the 5,593-page COVID relief and omnibus spending mashup Congress passed and President Trump reluctantly signed a couple days ago. There »

DOL wants more time to mull appealing meritless Oracle case

Featured image Who is running the Trump Department of Labor? Ostensibly, it’s Secretary of Labor Gene Scalia. And, ostensibly, Kate O’Scannlain is running the DOL Solicitor’s office. After all, she is the Solicitor. However, the DOL’s unwillingness to let go of its baseless discrimination case against Oracle suggests that leftist career employees are in control of that litigation, and who knows what else. It has been obvious all along that, under any »

Get your hand out of my shower revisited

Featured image Before the advent of the modern environmental movement, National Review founder Bill Buckley used to proclaim with a glint in his eye that a liberal is someone who wants to reach into your shower and adjust the temperature of the water. Man, oh, man, was he right. The liberals’ environmental agenda brought Buckley’s satirical thrust uncomfortably close to reality. See, for example, the Wall Street Journal article “A water fight »