Author Archives: Michael Froomkin

Incompetence

Today’s Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs is the sort of dumb thing we law profs write up for final exams.

Here are key bits:

[Sec 2.] (a) Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.

(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).

(c) In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.

[Sec. 3] (c) Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent version or update of the published Unified Regulatory Agenda as required under Executive Order 12866, as amended, or any successor order, unless the issuance of such regulation was approved in advance in writing by the Director.

Sec. 4. Definition. For purposes of this order the term “regulation” or “rule” means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, but does not include:

(a) regulations issued with respect to a military, national security, or foreign affairs function of the United States;

(b) regulations related to agency organization, management, or personnel; or

(c) any other category of regulations exempted by the Director.

Spot the issues. (Hints: “Unless prohibited by law” “Unless otherwise required by law”, “Regulation’)

Posted in Administrative Law, Trump | Leave a comment

Malevolence

Benjamin Wittes–no leftie he–on the Trump immigration ban:

I don’t use the word “malevolence” here lightly. As readers of my work know, I believe in strong counterterrorism powers. I defend non-criminal detention. I’ve got no problem with drone strikes. I’m positively enthusiastic about American surveillance policies. I was much less offended than others were by the CIA’s interrogations in the years after September 11. I have defended military commissions.

Some of these policies were effective; some were not. Some worked out better than others. And I don’t mean to relitigate any of those questions here. My sole point is that all of these policies were conceptualized and designed and implemented by people who were earnestly trying to protect the country from very real threats. And the policies were, to a one, proximately related to important goals in the effort. While some of these policies proved tragically misguided and caused great harm to innocent people, none of them was designed or intended to be cruel to vulnerable, concededly innocent people. Even the CIA’s interrogation program, after all, was deployed against people the agency believed (mostly correctly) to be senior terrorists of the most dangerous sort and to garner information from them that would prevent attacks.

I actually cannot say that about Trump’s new executive order—and neither can anyone else.

I don’t agree with many of the priors above, but the significance here is that Trump has lost the any chance of getting support from the establishment unless he is directly paying them.

See also this blistering analysis by Elliot Cohen, formerly a counselor to Secretary of State Condoleezza Rice, A Clarifying Moment in American History:

There is in this week’s events the foretaste of things to come. We have yet to see what happens when Trump tries to use the Internal Revenue Service or the Federal Bureau of Investigation to destroy his opponents. He thinks he has succeeded in bullying companies, and he has no compunction about bullying individuals, including those with infinitely less power than himself. His advisers are already calling for journalists critical of the administration to be fired: Expect more efforts at personal retribution. He has demonstrated that he intends to govern by executive orders that will replace the laws passed by the people’s representatives.

In the end, however, he will fail. He will fail because however shrewd his tactics are, his strategy is terrible—The New York Times, the CIA, Mexican Americans, and all the others he has attacked are not going away. With every act he makes new enemies for himself and strengthens their commitment; he has his followers, but he gains no new friends. He will fail because he cannot corrupt the courts, and because even the most timid senator sooner or later will say “enough.” He will fail most of all because at the end of the day most Americans, including most of those who voted for him, are decent people who have no desire to live in an American version of Tayyip Erdogan’s Turkey, or Viktor Orban’s Hungary, or Vladimir Putin’s Russia.

There was nothing unanticipated in this first disturbing week of the Trump administration. It will not get better. Americans should therefore steel themselves, and hold their representatives to account. Those in a position to take a stand should do so, and those who are not should lay the groundwork for a better day. There is nothing great about the America that Trump thinks he is going to make; but in the end, it is the greatness of America that will stop him.

Posted in Immigration, Trump | Leave a comment

Watch the Overton Window Move

More people donated to the ACLU this weekend than attended Trump’s inauguration. – Via Did You Have A Nice Weekend? ACLU Did!

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Video of my CPDP 2017 Talk

The efficient folks at CPDP 2017 have put up a video of my very brief talk yesterday afternoon.

Posted in Talks & Conferences | Leave a comment

Trump is President. I am Leaving the Country

Now that the Inaugural has taken place, I am going to Brussels. The two facts are not, however, related: I’m going the CPDP conference and the EDRi privacy camp. Back in a week.

Posted in Talks & Conferences | 1 Comment

Burn Your Bridges

Why wait? Get on the White House blacklist now by signing this petition to Immediately release Donald Trump’s full tax returns, with all information needed to verify emoluments clause compliance at We The People.

Hurry–before they close it down.

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