4 ms·
No, not state's rights. Due process of law and non-delegation are what's being ignored, and in turn, situations where actual harm is being caused without any av
by jimz 3y ago
No, not state's rights. Due process of law and non-delegation are what's being ignored, and in turn, situations where actual harm is being caused without any avenue of redress is commonplace, particularly post PATRIOT Act.
This isn't the 1970s anymore. With the courts holding onto Chevron deference and the reorganization post 9/11 that effectively armed agencies to make them literally judge jury and executioner (not in that order) in some cases, as well as the continued inaction by congress to at least not allow Bivens to be whittled away to nothing, fundamentally what exemplifies agency action is no longer the idealized "do-gooders" but instead, ICE using tactics that would certainly be outside of what's permitted by the police to effectuate rules that it created and interpreted and enforced based on the barest of congressional mandates - and the abdication is on purpose - that results in American citizens being deported with little recourse or redress (provided that they make it back into the US somehow); CBP routinely fails to notify or deliberate skips notification for hearings prior to seizing what it deems contraband - never mind civil forfeiture (which it partakes in certainly), but administrative forfeiture; FDA rubber stamping DEA's requests which has no requirement to take into account any harm DEA's scheduling and enforcement processes may create to ordinary, law-abiding patients, and all this is on the record, whether it be from the inspectors general of the agencies themselves or during the rulemaking process, printed in black letter and online in the federal register. Post PATRIOT Act, DHS effectively is a paramilitary force that only partly answers to any court, and by large acts as enforcement for the executive branch. They do not serve judicial warrants but pretend to do so, use ruses to circumvent the 4th Amendment and refuse to answer FOIA requests, and agents have literally gotten away with murder not because the facts do not support such claims but because of a jurisdictional issue. It enables congress to write the vaguest of laws and let the agencies fill in the blanks as they wish, and they do so with gusto, frequently in ways that make no sense to the ordinary American or even English speaker in their selectiveness and choice of wording to the extent where multiple cases brought by states have litigated the wrong term of art before the process was mooted due to a change of administration. Agencies are frequently putting out non-binding, contradictory guidance on matters of importance, like, say, if crypto is a security. They also ignore parts of black letter law - asylum law has been broadly ignored by the Trump and the first half of the Biden administration, and in fact the distinct impression I get, having litigated such issues against DHS subagencies, is that the administration lacks full understanding of the complexities the agencies have created by themselves when it comes to rulemaking to the extent where terms that have no differentiation in plain English refer to entirely different things on a routine basis and somehow the term "admission" has at least six distinct definitions, sometimes used in conjunction in one paragraph, all of which are terms of art.
I can only comment on the agencies I directly dealt with as an attorney and in the best of times, when the law (or really, custom) is followed correctly, absurdities happen routinely that cause real harm. That's just one agency. The practices of the SEC, FAA, and a myriad of others that are more or less in a state of regulatory capture is frequently written about, but not having direct experience dealing with their homespun processes, feel free to start by perusing each agency's Inspector General Reports to get a sense of the tip of the iceberg. It has nothing to do with states' rights - we are talking about federal agencies, as there is actually recourse and remedies against state agencies, but not against federal agencies. Even if you believe that agencies are all acting on good intentions, it is creating bad - and frequently kafkaesque - outcomes.
Administrative law covers a lot of areas of concern, but it's when agencies, with next to no regard to due process as we ordinarily understand it and acting as brownshirts of whichever administration in power, make a mockery of basic human rights and back it up with loaded guns and pretensions of police, we're in a place that the congress that drafted the Administrative Procedures Act never anticipated and arguably, never intended, yet, here we are. Judicially my interpretation of the constitution is of the kind that believes not in the Borkian judicial restraint (which begs the question why does the court even exist) but an engaged court that is willing to fix things that have gone awry, feel free to label it however you want, as long as I'm grouped in with the pro-immigration anti-nationalist faction.