Kleptocracy in the law; Stupidity in regulations

Last August I posted about the radical right authoritarian USSC decision in a case called Loper Bright. In July, I posted about the likely horrific impacts Loper Bright. In that lawsuit, Republicans on the USSC gutted a long-standing (1984) USSC legal decision called the Chevron defense. The Cheveron defense required courts to give deference to federal agency regulations that implement the usually incoherent laws that congress writes and passes. Last August, the US Air Force was relying on the Loper Bright decision to blow off environmental regulations the EPA was trying to impose. 

Today, the NYT writes (not paywalled) about a major repercussion from the incredibly damaging, hyper-radical Loper Bright decision: 

Net Neutrality Rules Struck Down by Appeals Court

After nearly two decades of fighting, the battle over regulations that treat broadband providers as utilities came to an end on Thursday

A federal appeals court struck down the Federal Communications Commission’s landmark net neutrality rules on Thursday, ending a nearly two-decade effort to regulate broadband internet providers as utilities.

The U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said the F.C.C. lacked the authority to reinstate rules that prevented broadband providers from slowing or blocking access to internet content. In its opinion, a three-judge panel pointed to a Supreme Court decision in June, known as Loper Bright, that overturned a 1984 legal precedent that gave deference to government agencies on regulations.

“Applying Loper Bright means we can end the F.C.C.’s vacillations,” the court ruled.

The court’s decision put an end to the Biden administration’s hallmark tech policy, which had drawn impassioned support from consumer groups and tech giants like Google and fierce protests from telecommunications giants like Comcast and AT&T.

The F.C.C. had voted in April to restore net neutrality regulations, which expand government oversight of broadband providers and aim to protect consumer access to the internet.  

The regulations were first put in place nearly a decade ago under the Obama administration and were aimed at preventing internet service providers like Verizon or Comcast from blocking or degrading the delivery of services from competitors like Netflix and YouTube.

As is usual in law and politics these days, wealthy special interests and their money talk and the public interest walks. This is a great example of that truth. The radicalized Republican USSC, DJT and MAGA have been on the side of killing the Chevron defense. That is an effective way to get rid of dozens or hundreds of all kinds of regulations that protect the environment, consumers and workers. In this case, ISPs like Verizon can now jack up prices and profits without regulatory hindrance. Consumers will pay more. Verizon and other corporate winners here might feel compelled provide a “gratuity” (formerly called a bribe) to the appeals court and the USSC for a fine job well done.

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This NYT article describes some of the basis for hostility to federal regulations. The problem is that some regulations are worse than merely stupid. Some cause harm. By smearing all regulations as the basically the same, MAGA has finally managed to kill off essentially the entire federal regulatory infrastructure by killing the Chevron defense. The main targets of MAGA are regulations that protect the environment, consumers and workers. The NYT writes about a stupid regulation and an equally stupid fix:

The Most Reliable Scapegoat in Politics? Red Tape.

Less regulation is an easy rhetorical pitch. Better regulation is harder to stump for

Just before the November election, Representative Marie Gluesenkamp Perez, a Democrat from Washington’s Third Congressional District, posted a video explaining why she was running to keep her seat. Unlike many other Democrats, she didn’t talk about Donald Trump or the state of democracy. She talked about fruit. She dressed casually and spoke directly, like one parent sharing a grievance with another at the playground. It all started, she said, when a constituent who worked at a day-care facility complained to her that she was not “legally allowed to peel bananas or oranges for the kids.” Why not? “She said peeling fruit is considered food prep.” (Here Gluesenkamp Perez tightened her eyebrows, as in: Can you believe it?) Even worse, while peeling a healthful banana was against the rules, opening a bag of potato chips was apparently fine.

The congresswoman looked into it. At first, she said, the regulators she talked to gave her the runaround, insisting that this wasn’t what the rules said. [hence public hostility toward regulators and regulations] But eventually she concluded that it was true: This day care would need to install “like six more sinks” to meet the legal requirements to serve fresh fruit. To Gluesenkamp Perez, this was an absurd example of how regulations that made “good reading on paper” [how could that reg ever look good on paper?] easily went awry in “the real world,” a policy emblematic of “an ingrained disregard for working people by policymakers in D.C.”

This video is part of a long tradition of bashing American bureaucracy and a perfect example of how easy it can be. Candidates perennially tell us that they’re the ones who understand the pain of being constrained by thickets of red tape — the warriors of common sense who will pick up a machete and hack away at the meddling of clueless elites who gaze down on real life from up high.

Trump often goes further, casting the entire administrative state as useless at best and a malevolent, corrupt, anti-American fifth column at worst and pledging to empower business-world titans like Elon Musk to hew through it in search of inefficiency. In the aftermath of Trump’s victory, politicians of both parties clearly feel some pressure to communicate that they understand this zeitgeist; Representative Ro Khanna, a Democrat from California, quickly declared himself ready to work with the proposed Department of Government Efficiency to “slash waste.”

When I read the bill, though — officially titled the Cutting Red Tape on Child Providers Act of 2024 — it turned out to be, well, not particularly concrete, even as an exercise in messaging. It proposes just one change: the addition of a single sentence to the federal law governing block grants to states to support child-care programs. Any state that takes these grants, the new sentence says, must “not create any barriers on the simple preparation” — defined as “washing, peeling, cutting and serving” — “of fresh fruits and vegetables.”

To which I could only think: Hold on. No barriers? I’ve never worked in a day care, but I drop my kids off at one most weekdays, bearing partial witness to the endless flows of snot and other bodily fluids that turn such places into potent germ-distribution centers. It seems uncontroversial to say that some barriers on fruit preparation might be welcome — say, not washing it in the same sink where children are cleaning up after using the bathroom, or at least washing your hands before serving it. These things are “common sense,” but codifying “common sense” is a great deal of what rules do. To borrow Gluesenkamp Perez’s own phrasing: “No barriers” sounds nice on paper, but what about the real world?

The two topics in this blog post are deeply entwined with each other. Both are essential tools in the rise of kleptocratic American radical right authoritarianism. MAGA elites desperately want to get rid of regulations so they can profit from fun activities like political payoffs, plunder, pollution and persecution of consumers, workers and the environment. MAGA elites demagogue the hell out of the deep state with its allegedly tyrannical and sometimes actually stupid regulations.

Getting rid of regulations is one of the key requirements to the rise of kleptocracy. The other two keys are (1) getting rid of anti-fraud oversight, e.g., by replacing independent inspector generals with corrupt DJT loyalists as Project 2025 proposes, and (2) neutering law enforcement for elites who tow the MAGA line, and properly tip their federal judges, congresspersons and of course DJT himself.

America's consumers, workers and environment need smart regulations that work reasonably well with the lowest practical adverse impact for regulated interests. That is smart, reasonable regulation. What authoritarian MAGA kleptocrats want is little to no regulation for elites and lots of control over the people, i.e., by gutting civil liberties and protective regulations.