Back in June I signed on to EPIC‘s request to the NSA (formally a ‘petition’ under 5 U.S.C. § 553(e)). Here is the text:
Dear General Alexander and Secretary Hagel:
The undersigned individuals and organizations, concerned about the rule of law and the protection of Constitutional freedoms, hereby petition the National Security Agency to conduct a public rulemaking on the agency’s monitoring and collection of communications traffic within the United States. 5 U.S.C. § 553(e).
We believe that the NSA’s collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974, and the Foreign Intelligence Surveillance Act of 1978 as amended.
The NSA’s collection of solely domestic communications, which has been acknowledged by the President, the Director of National Intelligence, and the Chair and Ranking Member of the Senate Select Committee on Intelligence, also constitutes a legislative rule that “substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking” under the Administrative Procedure Act. EPIC v. DHS, 653 F.3d 1, 6 (D.C. Cir. 2011). Accordingly, the NSA’s collection of domestic communications, absent the opportunity for public comment, is unlawful.
We hereby petition the National Security Agency, a component of the Department of Defense, for relief. We ask the NSA to immediately suspend collection of solely domestic communications pending the completion of a public rulemaking as required by law.
We intend to renew our request each week until we receive your response.
The NSA Responded. No prizes for guessing what they said:
Eye on Miami has a great letter from a citizen who tried to participate in state electric power rate-setting. Putting FPL on the spot should be required reading for anyone interested in energy law, state administrative law, or more general questions of public participation in government.
Here is just a small taste:
My first stop on my adventure was the public service hearing held in Sarasota on May 31, 2012. Here I first saw the most shocking thing about the public hearing process. In the lobby of the hearing site (Sarasota City Hall) were numerous FPL customer service representatives wearing FPL shirts who are greeting members of the public arriving to speak to the rate increase proposal. And FPL seems to have their own dedicated room. Which made no sense at all. It’s like a court hearing but one of the parties to the case gets to have their own room in the courthouse and a staff to lobby everyone, judges, jurors and the public as they walk by as to why their side is right. FPL also gets to have a table handing out literature. Nobody else gets to have a room or a table or representatives right outside the hearing room. There is no Audubon Society, no Environmental Defense Fund, no Florida Public Interest Research Group in the lobby lobbying (I guess that is where the term comes from!) against the rate increase or against the proposals or actions of FPL.
The importance of this cannot be overstated. I had not yet intervened in the case but when I did subsequently intervene and speak from the stage as a party at the four Miami area public service hearings, I found that FPL gets a special room at every public hearing. They get to intercept members of the public who come to the hearings with complaints, before those members of the public enter the hearing room, and redirect them to the special FPL room and give them whatever it takes to “resolve their complaint”. The evidence indicates they are much more generous in achieving customer satisfaction in the special FPL rooms at the public hearings than they are in the normal course of their business. Essentially they run bribery rooms at every public hearing site with FPSC blessing.
POGO Study: Contractors Costing Government Twice as Much as In-House Workforce. This looks like an important study. The results are sadly not incredible: if you look not at the wages employees receive in the contracted-out businesses, but rather the prices their employers charge the government for their services, contracting-out looks (sometimes very) expensive compared to using government workers.
The U.S. government’s increasing reliance on contractors to do work traditionally done by federal employees is fueled by the belief that private industry can deliver services at a lower cost than in-house staff.
But a first-of-its-kind study released today by the Project On Government Oversight (POGO) busts that myth by showing that using contractors to perform services actually increases costs to taxpayers.
POGO’s new report is the first to compare the rate that contractors bill the federal government to the salaries and benefits of comparable federal employees. The study found that while federal government salaries are higher than private sector salaries, contractor billing rates average 83 percent more than what it would cost to do the work in-house.
The study comes with some caveats, but at first glance it looks like a serious attempt to measure things that — oddly — are not routinely measured by the government that pays for all this stuff.
The toy du jour is Google’s new ngram — a way to graph the frequency of words or phrases in 10% of the books published in the US. Here’s an ngram for “due process”.
Something went wrong in the late 1970s — shortly after Justice Rehnquist joined the Court. Or maybe it’s just after Mathews v. Eldridge, 424 U.S. 319 (1976).
It is not easy to explain the debate over whether — were the FCC to reclassify broadband as a Tittle II service — Sec. 201 and 202 of the Communications Act of 1934, as amended, would then permit or require the agency to allow tiered services or whether net neutrality would/could survive. It's complicated, but grandmaster telecoms lawyer Harold Feld not only explains it in plain English, but manages to be really funny too. I hope he'll forgive my reprinting one of the better punch lines.
A former student writes,
I am happy to report that I landed a new job with the [federal agency name deleted] and so far everything is great. As part of my duties I am reviewing the entire [agency] rulemaking process and ensuring we follow the proper administrative procedures. I also provided rulemaking guidance and explained the feasibility of creating interim final rules to the [agency's] Under Secretary on a few issues and my recommendations actually led to a change in US negotiating policy [in something big and international]. So it's looking like your admin law class easily ended up being one of the most useful and practical and I often find myself looking at my class notes for guidance.
Of all the things I have ever taught, it is the Administrative Law course that students most often come back — several years later — and thank me for. While I'm happy to take some of the credit, I think most of it belongs to the intrinsic importance of the subject.
Why more students don't take Administrative Law law school remains something of a puzzle. After years of chewing it over, I've come down to thinking there are three reasons are that AdLaw is not a more popular course:
- It's very hard
- It's not on the bar exam
- No one makes TV shows about administrative law or administrative lawyers.
But law students take note: you should take Administrative Law before you graduate — ideally in your second year of law school, because it's a foundational course that will help you with many other subjects.