#Administrative Procedure Act

[justinspoliticalcorner]

Erin Reed at Erin In The Morning:

In a landmark decision issued late Friday, a federal judge granted a preliminary injunction blocking the Trump administration’s passport policy targeting transgender Americans. The executive order, which required that passport gender markers reflect a person’s assigned sex at birth, effectively reversed three decades of precedent and left many applications stalled in bureaucratic limbo. The judge ruled the policy was “arbitrary and capricious,” likely in violation of the Administrative Procedure Act, the Paperwork Reduction Act, and the equal protection clause of the U.S. Constitution. The judge also ruled that the decision was based in animus and discrimination towards transgender people. While the injunction currently applies only to the named plaintiffs, a broader ruling protecting all transgender Americans is expected in the coming weeks.

“The plaintiffs have also demonstrated a likelihood of success on their separate argument that, under any standard of review, the Executive Order and Passport Policy are based on irrational prejudice toward transgender Americans and therefore offend our Nation’s constitutional commitment to equal protection for all Americans. In addition, the plaintiffs have shown that they are likely to succeed on their claim that the Passport Policy is arbitrary and capricious, and that it was not adopted in compliance with the procedures required by the Paperwork Reduction Act and Administrative Procedure Act,” ruled the judge.

The judge, when evaluating whether or not the transgender plaintiffs were being discriminated against in a way that likely violates their equal protection under the law, ruled that they likely were. This is because the order targets transgender people based on sex, an act that triggers a higher degree of constitutional scrutiny: “As to the first policy change, applicants are explicitly treated differently based on their sex assigned at birth. A person who identifies as female can receive a passport marked “F” if her sex assigned at birth was female, but not if her sex assigned at birth was male. Likewise, a person who identifies as male can receive a passport marked “M” if his sex assigned at birth was male, but not if his sex assigned at birth was female… Viewed from any angle, that amounts to a classification based on sex.” [...]

The judge also found that the administration’s decision to block passport gender marker changes for transgender people was rooted in anti-transgender animus, rendering the policy likely unconstitutional under any level of judicial scrutiny. In reaching this conclusion, the ruling considered not only the passport policy in isolation, but its context alongside other contemporaneous executive actions—most notably, the transgender military ban, in which the government argued that transgender individuals were inherently dishonorable and untruthful. These actions, the judge wrote, “convey a fundamental moral disapproval of transgender Americans.” The judge also ruled that the passport ban was arbitrary and capricious, failing to meet the standards required by the Administrative Procedures Act and the Paperwork Reduction Act.

A big ruling last night regarding gender marker changes on passports: Judge Julia Kobick ruled against Donald Trump’s massively bigoted executive order (EO 14168) on gender markers being required to match the person’s sex assigned at birth.

See Also:

HuffPost: Judge Blocks Trump’s Anti-Trans Passport Policy

[fromkenari]

I feel like every news outlet in the United States that is trying to downplay the importance of the Administrative Procedure Act is just trying to give Trump more leverage.

[nationallawreview]

Lawsuit Challenges CFPB’s ‘Buy Now, Pay Later’ Rule

On Oct. 18, 2024, fintech trade group Financial Technology Association (FTA) filed a lawsuit challenging the Consumer Financial Protection Bureau’s (CFPB) final interpretative rule on “Buy Now, Pay Later” (BNPL) products. Released in May 2024, the CFPB’s interpretative rule classifies BNPL products as “credit cards” and their providers as “card issuers” and “creditors” for purposes of the Truth…

[mostlysignssomeportents]

FTC vs surveillance pricing

Support me this summer on the Clarion Write-A-Thon and help raise money for the Clarion Science Fiction and Fantasy Writers' Workshop!

In the mystical cosmology of economics, "prices" are of transcendental significance, the means by which the living market knows and adapts itself, giving rise to "efficient" production and consumption.

At its most basic level, the metaphysics of pricing goes like this: if there is less of something for sale than people want to buy, the seller will raise the price until enough buyers drop out and demand equals supply. If the disappointed would-be buyers are sufficiently vocal about their plight, other sellers will enter the market (bankrolled by investors who sense an opportunity), causing supplies to increase and prices to fall until the system is in "equilibrium" – producing things as cheaply as possible in precisely the right quantities to meet demand. In the parlance of neoclassical economists, prices aren't "set": they are discovered.

In antitrust law, there are many sins, but they often boil down to "price setting." That is, if a company has enough "market power" that they can dictate prices to their customers, they are committing a crime and should be punished. This is such a bedrock of neoclassical economics that it's a tautology "market power" exists where companies can "set prices"; and to "set prices," you need "market power."

Prices are the blood cells of the market, shuttling nutrients (in the form of "information") around the sprawling colony organism composed of all the buyers, sellers, producers, consumers, intermediaries and other actors. Together, the components of this colony organism all act on the information contained in the "price signals" to pursue their own self-interest. Each self-interested action puts more information into the system, triggering more action. Together, price signals and the actions they evince eventually "discover" the price, an abstraction that is yanked out of the immaterial plane of pure ideas and into our grubby, physical world, causing mines to re-open, shipping containers and pipelines to spark to life, factories to retool, trucks to fan out across the nation, retailers to place ads and hoist SALE banners over their premises, and consumers to race to those displays and open their wallets.

When prices are "distorted," all of this comes to naught. During the notorious "socialist calculation debate" of 1920s Austria, right-wing archdukes of religious market fundamentalism, like Von Hayek and Von Mises, trounced their leftist opponents, arguing that the market was the only computational system capable of calculating how much of each thing should be made, where it should be sent, and how much it should be sold for.

Attempts to "plan" the economy – say, by subsidizing industries or limiting prices – may be well-intentioned, but they broke the market's computations and produced haywire swings of both over- and underproduction. Later, the USSR's planned economy did encounter these swings. These were sometimes very grave (famines that killed millions) and sometimes silly (periods when the only goods available in regional shops were forks, say, creating local bubbles in folk art made from forks).

Unplanned markets do this too. Most notoriously, capitalism has produced a vast oversupply of carbon-intensive goods and processes, and a huge undersupply of low-carbon alternatives, bringing the human civilization to the brink of collapse. Not only have capitalism's price signals failed to address this existential crisis to humans, it has also sown the seeds of its own ruin – the market computer's not going to be getting any "price signals" from people as they drown in floods or roast to death on sidewalks that deliver second-degree burns to anyone who touches them:

https://www.fastcompany.com/91151209/extreme-heat-southwest-phoenix-surface-burns-scorching-pavement-sidewalks-pets

For market true believers, these failures are just evidence that regulation is distorting markets, and that the answer is more unregulated markets to infuse the computer with more price signals. When it comes to carbon, the problem is that producers are "producing negative externalities" (that is, polluting and sticking us with the bill). If we can just get them to "internalize" those costs, they will become "economically rational" and switch to low-carbon alternatives.

That's the theory behind the creation and sale of carbon credits. Rather than ordering companies to stop risking civilizational collapse and mass extinction, we can incentivize them to do so by creating markets that reward clean tech and punish dirty practices. The buying and selling of carbon credits is supposed to create price signals reflecting the existential risk to the human race and the only habitable planet known to our species, which the market will then "bring into equilibrium."

Unfortunately, reality has a distinct and unfair leftist bias. Carbon credits are a market for lemons. The carbon credits you buy to "offset" your car or flight are apt to come from a forest that has already burned down, or that had already been put in a perpetual trust as a wildlife preserve and could never be logged:

https://pluralistic.net/2022/03/18/greshams-carbon-law/#papal-indulgences

Carbon credits produce the most perverse outcomes imaginable. For example, much of Tesla's profitability has been derived from the sale of carbon credits to the manufacturers of the dirtiest, most polluting SUVs on Earth; without those Tesla credits, those SUVs would have been too expensive to sell, and would not have existed:

https://pluralistic.net/2021/11/24/no-puedo-pagar-no-pagara/#Rat

What's more, carbon credits aren't part of an "all of the above" strategy that incorporates direct action to prevent our species downfall. These market solutions are incompatible with muscular direct action, and if we do credits, we can't do other stuff that would actually work:

https://pluralistic.net/2023/10/31/carbon-upsets/#big-tradeoff

Even though price signals have repeatedly proven themselves to be an insufficient mechanism for producing "efficient" or even "survivable," they remain the uppermost spiritual value in the capitalist pantheon. Even through the last 40 years of unrelenting assaults on antitrust and competition law, the one form of corporate power that has remained both formally and practically prohibited is "pricing power."

That's why the DoJ was able to block tech companies and major movie studios from secretly colluding to suppress their employees' wages, and why those employees were able to get huge sums out of their employers:

https://en.wikipedia.org/wiki/High-Tech_Employee_Antitrust_Litigation

It's also why the Big Six (now Big Five) publishers and Apple got into so much trouble for colluding to set a floor on the price of ebooks:

https://en.wikipedia.org/wiki/United_States_v._Apple_(2012)

When it comes to monopoly, even the most Bork-pilled, Manne-poisoned federal judges and agencies have taken a hard line on price-fixing, because "distortions" of prices make the market computer crash.

But despite this horror of price distortions, America's monopolists have found so many ways to manipulate prices. Last month, The American Prospect devoted an entire issue to the many ways that monopolies and cartels have rigged the prices we pay, pushing them higher and higher, even as our wages stagnated and credit became more expensive:

https://prospect.org/pricing

For example, there's the plague of junk fees (AKA "drip pricing," or, if you're competing to be first up against the wall come the revolution, "ancillary revenue"), everything from baggage fees from airlines to resort fees at hotels to the fee your landlord charges if you pay your rent by check, or by card, or in cash:

https://pluralistic.net/2024/06/07/drip-drip-drip/#drip-off

There's the fake transparency gambit, so beloved of America's hospitals:

https://pluralistic.net/2024/06/13/a-punch-in-the-guts/#hayek-pilled

The "greedflation" that saw grocery prices skyrocketing, which billionaire grocery plutes blamed on covid stimulus checks, even as they boasted to their shareholders about their pricing power:

https://prospect.org/economy/2024-06-12-war-in-the-aisles/

There's the the tens of billions the banks rake in with usurious interest rates, far in excess of the hikes to the central banks' prime rates (which are, in turn, justified in light of the supposed excesses of covid relief checks):

https://prospect.org/economy/2024-06-11-what-we-owe/

There are the scams that companies like Amazon pull with their user interfaces, tricking you into signing up for subscriptions or upsells, which they grandiosely term "dark patterns," but which are really just open fraud:

https://prospect.org/economy/2024-06-10-one-click-economy/

There are "surge fees," which are supposed to tempt more producers (e.g. Uber drivers) into the market when demand is high, but which are really just an excuse to gouge you – like when Wendy's threatens to surge-price its hamburgers:

https://prospect.org/economy/2024-06-07-urge-to-surge/

And then there's surveillance pricing, the most insidious and profitable way to jack up prices. At its core, surveillance pricing uses nonconsensually harvested private information to inform an algorithm that reprices the things you buy – from lattes to rent – in real-time:

https://pluralistic.net/2024/06/05/your-price-named/#privacy-first-again

Companies like Plexure – partially owned by McDonald's – boasts that it can use surveillance data to figure out what your payday is and then hike the price of the breakfast sandwich or after-work soda you buy every day.

Like every bad pricing practice, surveillance pricing has its origins in the aviation industry, which invested early on and heavily in spying on fliers to figure out how much they could each afford for their plane tickets and jacking up prices accordingly. Architects of these systems then went on to found companies like Realpage, a data-brokerage that helps landlords illegally collude to rig rent prices.

Algorithmic middlemen like Realpage and ATPCO – which coordinates price-fixing among the airlines – are what Dan Davies calls "accountability sinks." A cartel sends all its data to a separate third party, which then compares those prices and tells everyone how much to jack them up in order to screw us all:

https://profilebooks.com/work/the-unaccountability-machine/

These price-fixing middlemen are everywhere, and they predate the boom in commercial surveillance. For example, Agri-Stats has been helping meatpackers rig the price of meat for 40 years:

https://pluralistic.net/2023/10/04/dont-let-your-meat-loaf/#meaty-beaty-big-and-bouncy

But when you add commercial surveillance to algorithmic pricing, you get a hybrid more terrifying than any cocaine-sharks (or, indeed, meth-gators):

https://www.nbcnews.com/news/us-news/tennessee-police-warn-locals-not-flush-drugs-fear-meth-gators-n1030291

Apologists for these meth-gators insist that surveillance pricing's true purpose is to let companies offer discounts. A streaming service can't afford to offer $0.99 subscriptions to the poor because then all the rich people would stop paying $19.99. But with surveillance pricing, every customer gets a different price, titrated to their capacity to pay, and everyone wins.

But that's not how it cashes out in the real world. In the real world, rich people who get ripped off have the wherewithal to shop around, complain effectively to a state AG, or punish companies by taking their business elsewhere. Meanwhile, poor people aren't just cash-poor, they're also time-poor and political influence-poor.

When the dollar store duopoly forces all the mom-and-pop grocers in your town out of business with predatory pricing, and creating food deserts that only they serve, no one cares, because state AGs and politicians don't care about people who shop at dollar stores. Then, the dollar stores can collude with manufacturers to get shrunken "cheater sized" products that sell for a dollar, but cost double or triple the grocery store price by weight or quantity:

https://pluralistic.net/2023/03/27/walmarts-jackals/#cheater-sizes

Yes, fliers who seem to be flying on business (last-minute purchasers who don't have a Saturday stay) get charged more than people whose purchase makes them seem to be someone flying away for a vacation. But that's only because aviation prices haven't yet fully transitioned to surveillance pricing. If an airline can correctly calculate that you are taking a trip because you're a grad student who must attend a conference in order to secure a job, and if they know precisely how much room you have left on your credit card, they can charge you everything you can afford, to the cent.

Your ability to resist pricing power isn't merely a function of a company's market power – it's also a function of your political power. Poor people may have less to steal, but no one cares when they get robbed:

https://pluralistic.net/2024/07/19/martha-wright-reed/#capitalists-hate-capitalism

So surveillance pricing, supercharged by algorithms, represent a serious threat to "prices," which is the one thing that the econo-religious fundamentalists of the capitalist class value above all else. That makes surveillance pricing low-hanging fruit for regulatory enforcement: a bipartisan crime that has few champions on either side of the aisle.

Cannily, the FTC has just declared war on surveillance pricing, ordering eight key players in the industry (including capitalism's arch-villains, McKinsey and Jpmorgan Chase) to turn over data that can be used to prosecute them for price-fixing within 45 days:

https://www.ftc.gov/news-events/news/press-releases/2024/07/ftc-issues-orders-eight-companies-seeking-information-surveillance-pricing

As American Prospect editor-in-chief David Dayen notes in his article on the order, the FTC is doing what he and his journalistic partners couldn't: forcing these companies to cough up internal data:

https://prospect.org/economy/2024-07-24-ftc-opens-surveillance-pricing-inquiry/

This is important, and not just because of the wriggly critters the FTC will reveal as they use their powers to turn over this rock. Administrative agencies can't just do whatever they want. Long before the agencies were neutered by the Supreme Court, they had strict rules requiring them to gather evidence, solicit comment and counter-comment, and so on, before enacting any rules:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

Doubtless, the Supreme Court's Loper decision (which overturned "Chevron deference" and cut off the agencies' power to take actions that they don't have detailed, specific authorization to take) will embolden the surveillance pricing industry to take the FTC to court on this. It's hard to say whether the courts will find in the FTC's favor. Section 6(b) of the FTC Act clearly lets the FTC compel these disclosures as part of an enforcement action, but they can't start an enforcement action until they have evidence, and through the whole history of the FTC, these kinds of orders have been a common prelude to enforcement.

One thing this has going for it is that it is bipartisan: all five FTC commissioners, including both Republicans (including the Republican who votes against everything) voted in favor of it. Price gouging is the kind of easy-to-grasp corporate crime that everyone hates, irrespective of political tendency.

In the Prospect piece on Ticketmaster's pricing scam, Dayen and Groundwork's Lindsay Owens called this the "Age of Recoupment":

https://pluralistic.net/2024/06/03/aoi-aoi-oh/#concentrated-gains-vast-diffused-losses

For 40 years, neoclassical economics' focus on "consumer welfare" meant that companies could cheat and squeeze their workers and suppliers as hard as they wanted, so long as prices didn't go up. But after 40 years, there's nothing more to squeeze out of workers or suppliers, so it's time for the cartels to recoup by turning on us, their customers.

They believe – perhaps correctly – that they have amassed so much market power through mergers and lobbying that they can cross the single bright line in neoliberal economics' theory of antitrust: price-gouging. No matter how sincere the economics profession's worship of prices might be, it still might not trump companies that are too big to fail and thus too big to jail.

The FTC just took an important step in defense of all of our economic wellbeing, and it's a step that even the most right-wing economist should applaud. They're calling the question: "Do you really think that price-distortion is a cardinal sin? If so, you must back our play." Support me this summer on the Clarion Write-A-Thon and help raise money for the Clarion Science Fiction and Fantasy Writers' Workshop!

https://clarionwriteathon.com/members/profile.php?writerid=293388

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/07/24/gouging-the-all-seeing-eye/#i-spy

[watercress-words]

Laws, Rules, and Books-the U.S. Legislature and Library

Although it has been rather silent lately, the U.S. Congress is tasked with creating laws, leaving it to the executive branch to carry out. It also is guardian of the largest library in the world, dating back to 1815.

In previous posts, I’ve discussed the roles of the President and Congress in healthcare. We looked at the healthcare agencies under the Executive branch and the Congressional committees that oversee these agencies. This post shares how regulations are created but first, here is a simple outline of how a bill becomes law, from the U.S. Capitol website. Making Laws There are many different ways,…

[mariacallous]

 Our Nation has made tremendous progress in advancing the cause of equality for LGBTQI+ Americans, including in the military.  Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity.  Many of these patriotic Americans were subject to a court-martial.  While my Administration has taken meaningful action to remedy these problems, the impact of that historical injustice remains.  As Commander in Chief, I am committed to maintaining the finest fighting force in the world.  That means making sure that every member of our military feels safe and respected.

     Accordingly, acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to persons convicted of unaggravated offenses based on consensual, private conduct with persons age 18 and older under former Article 125 of the Uniform Code of Military Justice (UCMJ), as previously codified at 10 U.S.C. 925, as well as attempts, conspiracies, and solicitations to commit such acts under Articles 80, 81, and 82, UCMJ, 10 U.S.C. 880, 881, 882.  This proclamation applies to convictions during the period from Article 125’s effective date of May 31, 1951, through the December 26, 2013, enactment of section 1707 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66).

     The purpose of this proclamation is to pardon only offenses based on consensual, private conduct between individuals 18 and older that do not involve any aggravating factor, including:  

     (1)  conduct that would violate 10 U.S.C. 893a, prohibiting activities with military recruits or trainees by a person in a position of special trust;      (2)  conduct that was committed with an individual who was coerced or, because of status, might not have felt able to refuse consent;      (3)  conduct on the part of the applicant constituting fraternization under Article 134 of the UCMJ;      (4)  conduct committed with the spouse of another military member; or      (5)  any factors other than those listed above that were identified by the United States Court of Appeals for the Armed Forces in United States v. Marcum as being outside the scope of Lawrence v. Texas as applied in the military context, 60 M.J. 198, 207–08 (2004).

     The Military Departments (Army, Navy, or Air Force), or in the case of the Coast Guard, the Department of Homeland Security, in conjunction with the Department of Justice, shall provide information about and publicize application procedures for certificates of pardon.  An applicant for a certificate of pardon under this proclamation is to submit an application to the Military Department (Army, Navy, or Air Force) that conducted the court-martial or, in the case of a Coast Guard court-martial, to the Department of Homeland Security.  If the relevant Department determines that the applicant satisfies the criteria under this proclamation, following a review of relevant military justice records, the Department shall submit that determination to the Attorney General, acting through the Pardon Attorney, who shall then issue a certificate of pardon along with information on the process to apply for an upgrade of military discharge.  My Administration strongly encourages veterans who receive a certificate of pardon to apply for an upgrade of military discharge.  

     Although the pardon under this proclamation applies only to the convictions described above, there are other LGBTQI+ individuals who served our Nation and were convicted of other crimes because of their sexual orientation or gender identity.  It is the policy of my Administration to expeditiously consider and to make final pardon determinations with respect to such individuals.

     IN WITNESS WHEREOF, I have hereunto set my hand this twenty-sixth day of June, in the year of our Lord two thousand twenty-four, and of the Independence of the United States of America the two hundred and forty-eighth.                              JOSEPH R. BIDEN JR.

[us-enviro-comments]

The Public Comment Process (+ how to write effective public comments)

The US federal rule-making process is founded around the right to comment: the public's opportunity to publicly address the agency responsible for a decision. This right is enshrined by the Administrative Procedure Act (APA) of 1946 and reinforced by the National Environmental Policy Act of 1970, which both require that citizens be able to take part in pre-decision communication with a federal agency.

Public comments are important for a number of reasons:

Agencies must consider all new information received during the comment period and address that new information before publishing the final rule; this includes revising the proposed rule.

A good comment can be the basis for a court challenge. If the agency does not adequately address the new information in the comment, they can then be sued and the rule placed on hold until the issues raised by the new information are resolved.

Advocacy groups and journalists often scour public comments to get ideas for their own comments and campaigns, and to contextualize proposed rules.

Submitting a public comment on proposed federal rules and regulations is not like commenting on social media, though. Substantive comments that require agency response are those that contain information pertinent to the actions proposed in the regulation, such as community impacts, scientific evidence, or other data. Non-substantive comments ("I don't like this!") don't require any response beyond maybe a "Comment noted."

Here's a brief set of tips from the Public Comment Project:

“The most valuable public comments are unique, fact-based, and succinct. The agency will have to sort through many identical form letters and expressions of personal opinion.  

Your comment can report on scientific evidence that opposes or supports the theory behind the regulation. Providing additional supporting evidence helps strengthen the agency's position by creating a stronger scientific foundation for their action.

Use an opening sentence to establish your credibility. State who you are and summarize any of your experiences that are relevant to the topic of the proposal.

You do not have to come to a conclusion or judgement regarding the entirety of the regulation, but you do have to clearly communicate the implications of the research you present. Avoid leaving it up to the agency to infer how research or data relates to the regulation. 

Check out the agency's mission statement and any statutes relevant to the regulation. Federal agencies' actions are driven by their mission and held to the standards dictated by statutes, so make your comment stronger by explaining how your information contributes to their mission.”

You can also find templates here: https://publiccommentproject.org/comment-templates

Sources:

The Public Comment Project https://publiccommentproject.org

Democracy in Practice: Public Participation in Environmental Decisions, Beierle and Cayford 2002

Union of Concerned Scientists https://www.ucs.org/resources/participating-federal-rulemaking

[scotusrulingsandrhetoric]

Heckler v. Chaney, 470 U.S. 821 (1985), was a United States Supreme Courtdecision that held agency decisions to not undertake enforcement proceedings is "committed to agency discretion by law" (5 U.S.C. § 701(a)(2)) and therefore not subject to judicial review under the Administrative Procedure Act. From Wikipedia

[communistkenobi]

the other day I was going through the blog of a self-identified terf who had shown up in my notifications, and I saw them say that they wanted people to stop using asab terminology (assigned sex at birth) and instead use osab (observed sex at birth). which like at a basic level is very funny - don’t like the words being used to describe your body, hm? I can’t imagine what that feels like - but it does reveal this very particular commitment that anti-trans and anti-intersex reactionaries have to insisting that sex is just a natural objective fact, that all sexual and gendered violence is a result of men neutrally observing and then responding to the self-evident sexual properties of women. As if the act of observation is not political! It is a request to naturalise the assumptions of the people doing the observing. More fundamentally, it is a request to enshrine through language the assumptions of patriarchy, that sex is a complete and distinct property of the body that can be observed without interpretation, that it is self-evident. Observation itself is defined as a complete process; any part of the object under investigation that is not in view of the observer is rendered irrelevant. Thank god we’re just talking about sex, a very simple element of the human body that is easily cordoned off from the body its attached to!

And of course this wilfully ignores an obvious part of why trans and intersex people call attention to the assigned nature of sex. “Observed sex at birth” is already the first step in the assignment process, it is already implicated in the act of assignment, because the ritual of observing sex at birth is based on the assumption that this is a part of the body that is uniquely worthy of observation. The obvious follow-up question is why is sex worthy of observation in the first place? What assumptions go into the calculation of ‘worthiness’? If it’s so worthy of observation, who gets to be the observer? What are the consequences of this observation process? And if this is so important, how you do record the results of this observation process? Through a series of administrative, medical, and legal assignment procedures, perhaps? What if someone makes a mistake carrying out these procedures? What if the observer observes something they aren’t expecting (and where do those expectations come from)? What if they can’t observe anything? What do they do?

If you take this distinction seriously, if you insist ‘observation’ is somehow less politically or socially contingent than ‘assignment,’ you are advocating for a horrifically nihilistic worldview, one in where the ‘observations’ society makes about sex are all made natural. It is a request that is based on a political pursuit to fully enshrine patriarchy as a natural part of human life. I observe that the subjugation of women produces adverse educational, social, economic, and medical outcomes for them - I guess it’s just because women are naturally inferior. I mean what else could it possibly be? The doctors did a genital inspection on them when they were a baby. It says F right here on the birth certificate

[justinspoliticalcorner]

Emily Singer at HuffPost:

A federal judge on Thursday excoriated the Trump administration, ruling they illegally fired thousands of probationary federal employees and ordered the administration to immediately offer those workers their jobs back. U.S. District Judge William Alsup's ruling means thousands of workers at the departments of Veterans Affairs, Agriculture, Defense, Energy, Interior, and Treasury who were fired as part of President Donald Trump and co-President Elon Musk's failing efforts to slash the federal budget, will be offered their jobs back. “It is sad, a sad day when our government would fire some good employee and say it was based on performance when they know good and well that’s a lie,” Alsup said from the bench, according to Politico. “That should not have been done in our country.” Alsup also accused the Justice Department lawyers of willfully hiding facts to cover up their "sham" firings of federal employees.

[...] The lawsuit, filed by a group of federal employee unions, said that the firings were illegal because the Office of Personnel Management—which directed federal agencies to carry out the mass firings—did not have the authority to fire the probationary workers.  In the federal government, probationary workers also include employees who receive promotions, and the unions accused the Trump administration of “exploiting and misusing the probationary period to eliminate staff across federal agencies.” "OPM …  acted unlawfully by directing federal agencies to use a standardized termination notice falsely claiming performance issues,” the American Federation of Government Employees union, one of the groups that filed the lawsuit, said. “Congress, not OPM, controls and authorizes federal employment and related spending by the federal administrative agencies, and Congress has determined that each agency is responsible for managing its own employees.”

A pair of judges ruled yesterday to reverse the lawless DOGE firings of probationary federal workers.

See Also:

The Guardian: Judge orders Trump administration to reinstate most fired probationary staff

NBC News: Second judge orders thousands of probationary employees fired by Trump to be reinstated

[weaselandfriends]

Ender's Game (novel)

Is Ender Wiggin (pictured above as the little brother from Malcolm in the Middle) guilty of xenocide?

Actually, let's first answer a different, but related, question:

What game does the title "Ender's Game" refer to?

It's not as simple a question as it seems. There are three games that have a prominent role in the plot, all very different from one another.

The obvious answer is the Battle School zero-gravity game, where teams of competitors play glorified laser tag in a big empty cube. In terms of page count, most of the book is dedicated to this game. It's also the game depicted on the cover of the edition above.

Yet this game vanishes during the story's climax, when Ender is given a new game to play, a game he is told is a simulator of spaceship warfare. This "game" turns out to not be a game at all, though; after annihilating the alien homeworld in the final stage, Ender learns that he was actually commanding real ships against real enemies the whole time, and that he just singlehandedly ended the Human-Bugger war forever via total xenocide of the aliens. This is both the final game and the most consequential to the plot, despite the short amount of time it appears.

There's also a third game, a single-player video game Ender plays throughout the story. The game is procedurally generated by an AI to respond to the player's emotional state, and is used as a psychiatric diagnostic for the players. Of the three games, this is the one that probes deepest into Ender's psyche, that most defines him as a person; it's also the final image of the story, as the aliens build a facsimile of its world in reality after psychically reading Ender's mind while he xenocides them.

Because all three games are important, the easiest answer might be that the question doesn't matter, that the story is called Ender's Game not to propose this question at all but simply because the technically more accurate "Ender's Games" would improperly suggest a story about a serial prankster.

Fine. But why does the title use the possessive "Ender's" at all?

He does not own any of these games. He did not create them. He does not facilitate them. All of these games, even the simulator game, predate his use of them as a player, were not designed with him in mind, were intended to train and assess potential commanders for, ostensibly, the hundred years since the last Human-Bugger war.

It's in this question that we get to the crux of what defines Gamer literature.

These games are Ender's games because he dominates them into being about him. He enters a rigidly-defined, rules-based system, and excels so completely that the games warp around his presence. In the Battle School game, the administrators stack the odds against Ender, thereby rendering every other player's presence in the game irrelevant except in their function as challenges for Ender to overcome. The administrators acknowledge this in an argument among themselves:

"The game will be compromised. The comparative standings will become meaningless." [...] "You're getting too close to the game, Anderson. You're forgetting that it is merely a training exercise." "It's also status, identity, purpose, name; all that makes these children who they are comes out of this game. When it becomes known that the game can be manipulated, weighted, cheated, it will undo this whole school. I'm not exaggerating." "I know." "So I hope Ender Wiggin truly is the one, because you'll have degraded the effectiveness of our training method for a long time to come."

In this argument, Anderson views the game the way games have been viewed since antiquity: exercises in acquiring honor and status. This honor is based on the innate fairness inherent to games as rule-based systems, which is why in ancient depictions of sport the chief character is often not a competitor but the host, who acts as referee. In Virgil's Aeneid, for instance, the hero Aeneas hosts a series of funeral games (the games themselves intended as an honor for his dead father). Despite being the principal character of the epic, Aeneas does not compete in these games. Instead, he doles out prizes to each competitor based on the worthiness they display; his fairness marks him symbolically as a wise ruler. The Arthurian tournament is another example, where Arthur as host is the principal character, and the knights (Lancelot, Tristan, etc.) who compete do so primarily to receive honors from him or his queen.

In Ender's Game, it is the antagonistic figure Bonzo Madrid who embodies this classical concept of honor; the word defines him, is repeated constantly ("his Spanish honor"), drives his blistering hatred of Ender, who receives both unfair boons and unfair banes from the game's administrators, who skirts the rules of what is allowed to secure victory. Bonzo is depicted as a stupid, bull-like figure; his honor is ultimately worthless, trivially manipulated by Ender in their final fight.

Meanwhile, it's Ender's disregard for honor, his focus solely on his namesake -- ending, finishing the game, the ends before the means -- that makes him so valuable within the scope of the story. He is "the one," as Anderson puts it, the solipsistically important Gamer, the Only I Play the Game-r, because the game now matters in and of itself, rather than as a social activity. In the Aeneid and in Arthur, the competitors are soldiers, for whom there is a world outside the game. Their games are not a substitute for war but a reprieve from it, and as such they are an activity meant to hold together the unifying fabric of society. The values Anderson espouses (status, identity, purpose, name) are fundamentally more important in this social framework than winning (ending) is.

Ender's game, as the Goosebumps-style blurb on my 20-year-old book fair edition's cover proclaims, is not just a game anymore. Its competitors are also soldiers, but the game is meant to prepare them for war; the spaceship video game is actual war. And as this is a war for the survival of the human race, as Ender is told, there is no need for honor. The othered enemy must be annihilated, without remorse or mercy.

This ethos of the game as fundamentally important for its own sake pervades Gamer literature beyond Ender's Game. In Sword Art Online (which I wrote an essay on here), dying in the game is dying in real life, and as such, only Kirito's ability to beat the game matters. Like Ender, Kirito is immediately disdained by his fellow players as a "cheater" (oh sorry, I mean a "beater") because he possesses inherent advantages due to being a beta player. In an actual game, a game that is only a game, Kirito's cheat powers would render the game pointless. What purpose does Kirito winning serve if he does it with Dual Wielding, an overpowered skill that only he is allowed to have? But when a game has real stakes, when only ability to win matters, it is possible to disregard fairness and see the cheater as heroic.

This notion of the "cheat power," a unique and overpowered ability only the protagonist has, is pervasive in post-SAO Gamer literature. To those for whom games are simply games, such powers can only be infuriating and obnoxious betrayals of the purpose of games; to those for whom games mean more than just games, for whom games have a primacy of importance, these powers are all that matter.

That's the core conceit of Gamer literature: the idea that the Game is life, that winning is, in fact, everything.

What sets Ender's Game apart from Sword Art Online is that it creates the inverted world where the Game matters above all, but then draws back the curtain to reveal the inversion. The Buggers are, in fact, no longer hostile. They are not planning to invade Earth again, as Ender has been told his entire life. The war, for them, is entirely defensive, and Ender is the aggressor. And due to Ender's singleminded focus on Ending, on winning, on disregarding honor and fairness, he ultimately commits the xenocide, erases an entire sentient species from existence. He wins a game he should never have been playing.

The obvious counterargument, the one I imagine everyone who has read this book thought up the moment I posed the question at the beginning of this essay, is that Ender did not know he was committing xenocide. The fact that the combat simulator game was not a game was withheld from him until afterward. Plus, he was a child.

Salient arguments all. Ones the book itself makes, via Ender's commander, Graff, to absolve him of sin at the end. They're probably even correct, in a legal sense (I'm not a legal scholar, don't quote me), and in a moral sense. In real life, it would be difficult to blame a 10-year-old in those circumstances for what he did. But in the thematic framework of Ender's Game the book, these arguments are completely inadequate.

Ender has been playing a fourth game the entire story. And this is the only game he doesn't win.

A game is defined by its system of control and limitation over the behavior of the players. A game has rules. His whole life, Ender has been playing within the rules of the system of control his military commanders place upon him.

Their control extends even before he was born; as a third child in a draconian two-child-only world, his existence is at the behest of the government. Graff confirms this to Ender's parents when he recruits him to Battle School: "Of course we already have your consent, granted in writing at the time conception was confirmed, or he could not have been born. He has been ours since then, if he qualified." Graff frames this control utterly, in terms of possession: "he has been ours." He does not exaggerate. Since Ender was young, he has had a "monitor" implanted in his body so the army could observe him at all times, assess whether he "qualifies"; even the brief moment the monitor is removed is a test. "The final step in your testing was to see what would happen when the monitor came off," Graff explains after Ender passes the test by murdering a 6-year-old. Conditions are set up for Ender, similar to the unfair challenges established in the Battle School game; he is isolated from his peers, denied practice sessions, held in solitary confinement on a remote planetoid. It's all in service of assessing Ender as "the one."

Ender wins this game in the sense that he does, ultimately, become "the one" -- the one Graff and the other military men want, the xenocider of the Buggers. He fails this game in the sense that he does not break it.

The other three games Ender plays, he breaks. Usually by cheating. In the single-player psychiatry game, when presented with a deliberately impossible challenge where a giant gives him two glasses to pick between, Ender cheats and kills the giant. "Cheater, cheater!" the dying giant shouts. In the Battle School game, Ender is ultimately confronted by insurmountable odds: 2 armies against his 1. He cannot outgun his opponent, so he cheats by using most of his troops as a distraction so five soldiers can sneak through the enemy's gate, ending the game. At the school, going through the gate is traditionally seen as a mere formality, something done ceremonially once the enemy team is wiped out (there's that honor again, that ceremony), but it technically causes a win. Even Anderson, the game's administrator, sees this as a breach of the rules when Ender confronts him afterward.

Ender was smiling. "I beat you again, sir," he said. "Nonsense, Ender," Anderson said softly. "Your battle was with Griffin and Tiger." "How stupid do you think I am?" Ender said. Loudly, Anderson said, "After that little maneuver, the rules are being revised to require that all of the enemy's soldiers must be frozen or disabled before the gate can be reversed."

(I include the first part of that quote to indicate that Ender all along knows who he is really playing this game against -- the administrators, the military men who control every facet of his life.)

Ender beats the war simulator game in a similar fashion. Outnumbered this time 1000-to-1, he uses his soldiers as sacrifices to sneak a single bomb onto the alien's homeworld, destroying it and committing his xenocide. Ender himself sees this maneuver as breaking the rules, and in fact falsely believes that if he breaks the rules he will be disqualified, set free from the fourth game: "If I break this rule, they'll never let me be a commander. It would be too dangerous. I'll never have to play a game again. And that is victory." The flaw in his logic comes not from whether he's breaking the rules of the game, but which game he is breaking the rules of. It's not the fourth game, Ender's game, but the war simulator game, simply a sub-game within the confines of the fourth game, a sub-game the fourth game's administrators want him to break, a sub-game that gives Ender the illusion of control by breaking. When Ender tells his administrators about his plan, the response he receives almost taunts him to do it:

"Does the Little Doctor work against a planet?" Mazer's face went rigid. "Ender, the buggers never deliberately attacked a civilian population in either invasion. You decide whether it would be wise to adopt a strategy that would invite reprisals."

(And if it wasn't clear how much the administrators wanted him to do this all along, the moment he does it, they flood the room with cheers.)

Ender wins his games by cheating -- by fighting the rules of the game itself -- and yet he never cheats at the fourth game, the game of his life.

In this fourth game, he always plays by the rules.

In the inverted world of Gamer lit, where games define everything, including life and death, it's a common, even natural progression for the Gamer to finally confront the game's administrator. Sword Art Online ends when Kirito defeats Akihiko Kayaba, the developer. In doing so, Kirito exceeds the confines of the game, not simply by ignoring its rules and coming back to life after he's killed, but by demonstrating mastery against the game's God. Afterward, Sword Art Online truly becomes Kirito's Game, with nobody else able to lay claim to the possessive. Kirito demonstrates this control at the end of the anime by recreating Sword Art Online's world using its source code, completing the transition into a player-administrator.

(Though I wonder, how much of a class reading could one give to this new brand of Gamer lit? If classical games were told from the perspective of the one who controlled them, then is there not something innately anti-establishment in Kirito overcoming the controller? This is the gist of many other death game stories, like The Hunger Games, though none of them may be the most sophisticated takes on the subject, more empty fantasy than anything else.)

Ender never fights or defeats his administrators. He never even tries, other than rare periods of depressive inactivity. He doesn't try even though the option is proposed to him by Dink Meeker, an older student whom Ender respects:

"I'm not going to let the bastards run me, Ender. They've got you pegged, too, and they don't plan to treat you kindly. Look what they've done to you so far." "They haven't done anything except promote me." "And she make you life so easy, neh?" Ender laughed and shook his head. "So maybe you're right." "They think they got you on ice. Don't let them." "But that's what I came for," Ender said. "For them to make me into a tool."

Instead, Ender finds comfort in the control exerted on his life. When sent to Earth on leave, he seeks out a lake that reminds him of living in Battle School.

"I spend a lot of time on the water. When I'm swimming, it's like being weightless. I miss being weightless. Also, when I'm here on the lake, the land slopes up in every direction." "Like living in a bowl." "I've lived in a bowl for four years."

Because of this, Ender never cheats against Graff. He could; Graff states several times that Ender is smarter than him, and the fact that they have Ender fighting the war instead of Graff is proof he believes it. But Ender never considers it. He never considers gaming the system of his life.

If Gamer literature emphasizes the inversion of the world order, where games supersede reality in importance (and, as in Sword Art Online, only through this inverted order is one able to claim real power by being a Gamer), then Ender's Game acknowledges both sides of the inversion. For Ender, the games he plays are not simply games anymore. The psychology game, the Battle School game, the war simulator game; all of these he must win at all costs, even if it requires disrespecting the foundational purpose of these games. But his real life? Ender wants that to be a game, craves it to be a game, can't live unless the walls slope up around him like a bowl, can't stand it unless there is a system of control around him. He does what Graff tells him, even though he recognizes immediately that Graff is not his friend, that Graff is the one isolating him from others, rigging things against him. He does what Graff tells him all the way up to and including xenocide, because Ender cannot tell game from real life. That's the core deception at the end: Ender is playing a game that's actually real and he doesn't know it -- or refuses to acknowledge it, since nobody has ever tricked the genius Ender before this point.

Actually, that's not true. They tricked him twice before. Ender twice attacks his peers physically, with brutal violence. The administrators conceal from him that he murdered both his foes; he simply thinks he hurt them. The only way to trick Ender is to do so in a way that insulates him from the consequences of his actions. The only way he will allow himself to be tricked.

So, is Ender guilty of xenocide?

Under it all, Ender believes he is.

The dying Buggers, after reading Ender's mind, recreate the psychology game in the real world. The story ends when Ender finds this recreation, yet another blurring of the lines between game and reality.

The psychology game is different from the other games Ender plays, because nobody expects him to win it. Its purpose is not to be won, simply to assess his mental health. Yet Ender approaches it like the other games, cheats at it and systematically kills all his enemies until he reaches a place called The End of the World. (Another End for Ender.) His drive to win, to dominate, does not come solely from the pressures of the system around him, but from deep within himself, which is what Ender fears the most. But it is here, at The End of the World, where Ender finds atonement, both in the game and in the game-made-real. In the game, he kisses his opponent instead of killing them, and reaches a resolution he is happy with. He stops playing the game after doing this, though the game seems to continue (when an administrator asks him why he stopped playing it, he says "I beat it"; the administrator tells him the game cannot be beaten). It is through this act of love that Ender can escape the game-like system of control that puppeteers him no matter how smart and clever he is or thinks he is.

In the game-made-real, Ender finds his atonement in the same place, The End of the World. The Buggers left for him here, in this place that they (reading his mind) understood as the location of his mercy and compassion, an egg that can repopulate their species. Through this egg, Ender is given the chance to undo his xenocide. But that chance is also contingent on what The End of the World means to Ender, an end to the game, not simply the games he plays but the fourth game, the game of his life. Ender's Game.

[philosopherking1887]

More good things the Biden administration is doing: OSHA heat safety rules for workers

Remember when Texas and Florida passed laws preventing local and municipal governments from implementing their own heat safety rules and said that if heat is such a big problem, OSHA should make rules that apply to everyone? If not, NPR can remind you. OSHA has now accepted the challenge, moving much faster than they usually do:

OSHA National News Release U.S. Department of Labor July 2, 2024 Biden-Harris administration announces proposed rule to protect indoor, outdoor workers from extreme heat WASHINGTON – The U.S. Department of Labor has released a proposed rule with the goal of protecting millions of workers from the significant health risks of extreme heat. If finalized, the proposed rule would help protect approximately 36 million workers in indoor and outdoor work settings and substantially reduce heat injuries, illnesses, and deaths in the workplace. Heat is the leading cause of weather-related deaths in the U.S. Excessive workplace heat can lead to heat stroke and even death. While heat hazards impact workers in many industries, workers of color have a higher likelihood of working in jobs with hazardous heat exposure. “Every worker should come home safe and healthy at the end of the day, which is why the Biden-Harris administration is taking this significant step to protect workers from the dangers posed by extreme heat,” said Acting Secretary of Labor Julie Su. “As the most pro-worker administration in history, we are committed to ensuring that those doing difficult work in some of our economy’s most critical sectors are valued and kept safe in the workplace.” The proposed rule would require employers to develop an injury and illness prevention plan to control heat hazards in workplaces affected by excessive heat. Among other things, the plan would require employers to evaluate heat risks and — when heat increases risks to workers — implement requirements for drinking water, rest breaks and control of indoor heat. It would also require a plan to protect new or returning workers unaccustomed to working in high heat conditions. “Workers all over the country are passing out, suffering heat stroke and dying from heat exposure from just doing their jobs, and something must be done to protect them,” said Assistant Secretary for Occupational Safety and Health Douglas L. Parker. “Today’s proposal is an important next step in the process to receive public input to craft a ‘win-win’ final rule that protects workers while being practical and workable for employers.” Employers would also be required to provide training, have procedures to respond if a worker is experiencing signs and symptoms of a heat-related illness, and take immediate action to help a worker experiencing signs and symptoms of a heat emergency. The public is encouraged to submit written comments on the rule once it is published in the Federal Register. The agency also anticipates a public hearing after the close of the written comment period. More information will be available on submitting comments when the rule is published. In the interim, OSHA continues to direct significant existing outreach and enforcement resources to educate employers and workers and hold businesses accountable for violations of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1) and other applicable regulations. Record-breaking temperatures across the nation have increased the risks people face on-the-job, especially in summer months. Every year, dozens of workers die and thousands more suffer illnesses related to hazardous heat exposure that, sadly, are most often preventable. The agency continues to conduct heat-related inspections under its National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, launched in 2022. The program inspects workplaces with the highest exposures to heat-related hazards proactively to prevent workers from suffering injury, illness or death needlessly. Since the launch, OSHA has conducted more than 5,000 federal heat-related inspections. In addition, the agency is prioritizing programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor. These workers face unique vulnerabilities, including potential language barriers, less control over their living and working conditions, and possible lack of acclimatization, and are at high risk of hazardous heat exposure.

[nationallawreview]

US District Court Sets Aside the FTC’s Noncompete Ban on a Nationwide Basis

On August 20, the US District Court for the Northern District of Texas held that the Federal Trade Commission’s (FTC) final rule banning noncompetes is unlawful and “set aside” the rule. “The Rule shall not be enforced or otherwise take effect on its effective date of September 4, 2024, or thereafter.” The district court’s decision has a nationwide effect. The FTC is very likely to appeal to the…

[mostlysignssomeportents]

Trump’s Tiktok two-step is a lesson for future presidents

I'm about to leave for a 20+ city book tour for my new novel PICKS AND SHOVELS. Catch me on Feb 14 in BOSTON for FREE at BOSKONE , and on Feb 15 for a virtual event with YANIS VAROUFAKIS. More tour dates here.

Remember the Tiktok ban? I know, it was ten million years ago (in Musk years, anyway), so it may have slipped your mind, but let me remind you: Congress passed a law saying Tiktok was banned. Trump said he wouldn't enforce the law. The end.

No, really. I mean, sure, there's a bunch of bullshit about whether Trump will pick up the ban again after Tiktok's grace period ends, depending on whether they sell themselves to his creepy wax museum pal Larry Ellison. Maybe he will. Maybe Tiktok'll buy so many trumpcoins that he forgets about. Whatevs.

The important thing here is: Congress passed a (stupid) law and Trump said, "I've decided not to enforce that law" and then that was it:

https://prospect.org/justice/2025-01-31-trump-administration-test-supreme-court-tiktok/

Sure, there's some big rule of law/checks and balances/separation of powers problems here, and there are plenty of laws I'm mad about Trump not enforcing (like the law that says corporations can't bribe foreign governments, say). But this one? Sure, it's fine. The problem with Tiktok is that it invades our privacy in creepy ways, not that it is owned by a Chinese company. I don't want Zuck or Musk or (especially) Trump invading my privacy.

Congress hasn't passed a consumer privacy law since 1988, when they banned video store clerks from telling newspapers about your VHS viewing habits. That's why Tiktok is a problem. Pass that law, and if any president decides not to enforce it, I'll be mad as hell and I'll be right there in the streets next to you, in head-to-toe CV dazzle, with all my distraction rectangles in Faraday pouches, shlepping a placard bearing the Social Security Numbers of every Cabinet member in giant writing.

But the point is, the president defied Congress, which is a thing that Very Serious Grownups told us radicals Joe Biden mustn't do under any circumstances, lest the resulting constitutional crisis tear the country apart, or, at the very least, alienate so many voters that Donald Trump would become the next president.

We let Very Serious Grownups call the shots, and Donald Trump is president. Maybe we should stop listening to Very Serious Grownups?

Look, presidents ignore Congress's laws all the time. The Comstock Act (which effectively bans transporting pornography and contraception) is almost entirely ignored, and has been for generations (though Trump's creepy Heritage Foundation puppetmasters have promised to bring it back). The Robinson-Patman Act hasn't been enforced since the Reagan years, which is a damned shame, because Robinson-Patman would put Walmart, Amazon, Dollartree and Dollar General out of business (Biden started to enforce Robinson-Patman again during his last year in office):

https://pluralistic.net/2024/08/14/the-price-is-wright/#enforcement-priorities

I'm not trying to say that enforcing (or ignoring) the Comstock Act is the same as ignoring (or enforcing) the Robinson-Patman Act. The Comstock Act is bad, and the Robinson-Patman Act is good. I am capable of making that moral judgment, and I would like to have a president who does the same.

The fear about Trump ignoring the laws and procedures is justified, but not because of the damage he's doing to laws and procedures – it's because of the damage he's doing to the people of this country and the world.

Take the records that Trump has destroyed – vital data about public health and other subjects (thankfully, most of this was saved from destruction by the Internet Archive). The most important fact about that act of destruction is the harm that will result from it, not the failure to follow procedure.

There are plenty of times in which I am OK with people ignoring the law and destroying records. In 1943, Dutch guerrillas bombed the civil registry building in Amsterdam, to keep the records of where Jews and other disfavored minorities lived out of the hands of occupying Nazis. The firefighters on the scene kept their hoses running until any paper that hadn't been burned was reduced to slurry:

https://en.wikipedia.org/wiki/1943_Amsterdam_civil_registry_office_bombing

I'm fine with destroying records that wicked, vicious authoritarians would use to harm my neighbors.

Remember when Biden tried to cancel student debt? He could have started off by destroying the records of who owed what, so when the courts overturned his administrative action, it would have been hard or impossible to collect on the debts that were still held on federal books, or whose records the feds had (no, I'm not suggesting that Nazi death camp deportations are equivalent to unjust student debt collections, but if you agree that sometimes it's OK to illegally destroy records, then all we're left with is haggling over the specifics).

Sure, this would have been a constitutional crisis, but, as Ryan Grim says, "It is apparently unconstitutional for the president to instruct the Department of Education to restructure and forgive some student loan debt but it is ok for DOGE chair Elon Musk to just get rid of the whole department. Anywho."

https://twitter.com/ryangrim/status/1888973174819164663?t=Cd8fl4FWjY5zsOlQWZGv4g

Canceling debt isn't forgiving debt. Student borrowers have been preyed upon by colleges and lenders. People who borrowed $79.000 and paid back $190,000 can somehow still owe $236,000 do not need to be forgiven, because (unlike Trump) they haven't sinned. Rather, their debts need to be canceled (like Trump):

https://pluralistic.net/2020/12/04/kawaski-trawick/#strike-debt

Trump's shown us what a president should do when the courts get in their way: fight back. Worst case scenario is the court prevails, and a bunch of Fedsoc judges (up to and including the Supreme Court) set binding precedent that reduces the power of the president, which would be, you know, great. Best case scenario: Americans are freed from these crippling, fraudulent debts and, you know, vote for Democrats and against Trump, instead of staying home because they don't feel like the Democrats have their back.

Defying unjust court decisions isn't Trumpian – it's Rooseveltian. Roosevelt (following in Lincoln's footsteps) spent years discrediting and weakening the Supreme Court's power, using his bully pulpit to rob them of authority and build the political will to pack the court, which he was on the brink of doing when the Supreme Court surrendered:

https://pluralistic.net/2020/09/20/judicial-equilibria/#pack-the-court

Democrats developed an online organizing playbook, and it worked, so Republicans took it, improved on it, and won elections. Republicans have developed a devastatingly effective constitutional hardball playbook. Democrats should steal that playbook and run with it:

https://pluralistic.net/2024/10/18/states-rights/#cold-civil-war

I rang doorbells, made phone calls, and shelled out money for Democrats in the last cycle because I wanted them to do stuff that helps Americans, not because I wanted them to follow procedures. The fact that Trump is building offshore concentration camps and has deported our neighbors to them (to name just one of many cheap dystopian fanfics that Trump is LARPing) should be the kind of five-alarm fire that sent South Korean lawmakers scaling the barricades last month.

This is the kind of crisis where I'd expect Democrats on the Hill, at a minimum, to be refusing to give Trump and the GOP anything. Call quorum on every vote. Debate every amendment. Raise every objection. Vote against everyting. Do not confirm a single appointee. And any elected Dem that refuses to play along? Kick 'em out of the caucus. Oh, we can't afford to do that because we can't afford to lose a single lawmaker? How did that work out with Kirsten Synema and Joe Manchin? Shoulda kicked them out after the first vote, shoulda raised money for any real Dem willing to primary them. Should have shunned them in the hallways and refused to invite them to the Christmas parties. We should do that to Fetterman. Party unity got us nothing under Biden. Party unity got us Trump. Doing the same thing over and over again and expecting a different outcome isn't actually the formal definition of insanity, but it is nevertheless very, very stupid.

For the past four years, Very Serious Grownups in the Democratic machine kept telling us that we couldn't expect the president to do anything, or Congress to do anything, or the Senate to do anything, because the Republicans would stop them. Or the courts would stop them. Why fight when you know you're gonna lose? Because sometimes, you'll win. And even if you lose, you'll go down fighting.

Better yet, if you lose in just the right way, you'll force Trump's judges to take away powers from the President and the administrative agencies – take away the powers Trump is now wielding like a sledgehammer.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2025/02/11/you-and-what-army/#student-debt

[rjzimmerman]

Excerpt from this story from Common Dreams:

Climate defenders and farmers sued the Trump administration in federal court on Monday over "the U.S. Department of Agriculture's unlawful purge of climate-related policies, guides, datasets, and resources from its websites."

The complaint was filed in the Southern District of New York by Earthjustice and the Knight First Amendment Institute at Columbia University on behalf of the Environmental Working Group (EWG), Natural Resources Defense Council (NRDC), and Northeast Organic Farming Association of New York (NOFA-NY).

The case focuses on just one part of Republican President Donald Trump's sweeping effort to purge the federal government and its resources of anyone or anything that doesn't align with his far-right agenda, including information about the fossil fuel-driven climate emergency.

"USDA's irrational climate change purge doesn't just hurt farmers, researchers, and advocates. It also violates federal law several times over," Earthjustice associate attorney Jeffrey Stein said in a statement. "USDA should be working to protect our food system from droughts, wildfires, and extreme weather, not denying the public access to critical resources."

Specifically, the groups accused the department of violating the Administrative Procedure Act, Freedom of Information Act, and Paperwork Reduction Act. As the complaint details, on January 30, "USDA Director of Digital Communications Peter Rhee sent an email ordering USDA staff to 'identify and archive or unpublish any landing pages focused on climate change' by 'no later than close of business' on Friday, January 31."

"Within hours, and without any public notice or explanation, USDA purged its websites of vital resources about climate-smart agriculture, forest conservation, climate change adaptation, and investment in clean energy projects in rural America, among many other subjects," the document states. "In doing so, it disabled access to numerous datasets, interactive tools, and essential information about USDA programs and policies."

EWG Midwest director Anne Schechinger explained that "by wiping critical climate resources from the USDA's website, the Trump administration has deliberately stripped farmers and ranchers of the vital tools they need to confront the escalating extreme weather threats like droughts and floods."

[bemusedlybespectacled]

I don't understand the chevron law thing, could you explain it like I'm five? Should we be working towards fixing whatever the courts just fucked up?

So, okay, I am condensing like a semester of a class I took in 2017 into a very short explanation, but:

It would be really annoying for Congress to individually pass laws approving every new medicine or listing out every single poison you can't have in tap water, so instead there are agencies created by Congress, via a law, to handle a specific thing. The agencies are created by Congress but overseen by the executive branch (so, the president), which is why we say things like "Reagan's EPA" or "Biden's DOJ" - even though Congress creates them, the president determines how they do the thing Congress wants them to do, by passing regulations like "you can't dump cyanide in the local swimming pool" and "no, you can't dump strychnine, either."

However, sometimes people will oppose these regulations by saying that the agency is going beyond the task they were given by Congress. "The Clean Air Act only bans 'pollutants,' and nowhere in the law does it say that 'pollutants' includes arsenic! You're going beyond your mandate!" To which the experts at the EPA would be like, "We, the experts at the EPA, have decided arsenic is a pollutant." On the flip side, the EPA could be like, "We, the experts at the EPA, have decided that arsenic isn't a pollutant," and people would oppose that regulation by being like, "But the Clean Air Act bans 'pollutants,' and it's insane to say that arsenic isn't a pollutant!" So whose interpretation is correct, the government's or the challengers'?

Chevron deference basically put heavy weight onto how the agency (i.e. the government) interpreted the law, with the assumption that the agency was in the right and needing pretty strong evidence that they were interpreting it wrong (like, blatantly doing the opposite of a clear part of the law or something). If there was any ambiguity in how the law was written, you'd defer to the agency's interpretation, even if that interpretation was different depending on who was president at the time.

(Note: there are other ways of challenging regulations other than this one, like saying that they were promulgated in a way that is "arbitrary and capricious" – basically, not backed by any evidence/reasoning other than "we want it." Lots of Trump-era regulations got smacked with this one, though I think they'd be better at it if Trump gets a second term, since they've now had practice.)

Chevron deference wasn't all good – remember that the sword cuts both ways, including when dickholes are in power – but it was a very standard part of the law. Like, any opposition to a regulation would have some citation to be like "Chevron doesn't apply here" and every defense would be like "Chevron absolutely applies here" and most of the time, the agency would win. Like, it was a fundamental aspect of law since the 80s.

The Supreme Court decision basically tosses that out, and says, "In a situation where the law is ambiguous, the court decides what it means." That's not completely insane – interpreting law is a thing judges normally do – but in a situation where the interpretation may hinge on something very complicated outside of the judge's wheelhouse, you now cannot be like, "Your Honor, I promise you that the experts at NOAA know a lot about the weather and made this decision for a good reason."

The main reason it's a problem is that it allows judges to override agencies' judgements about what you should do about a thing and what things you should be working on in the first place. However, I don't think there's really a way of enshrining that into law, outside of maybe adding something to the Administrative Procedure Act, and that would require a Congress that isn't majority Republican.

I will say that kind of I expected this to happen, just because IIRC Gorsuch in particular hates Chevron deference. IMO it's a classic case of "rules for me but not for thee" – Scalia and other conservatives used to rely on Chevron because they wanted their presidents to hold a ton of unchecked power (except for the EPA), but now that we've had Obama and Biden, now conservatives don't like Chevron because it gives the presidents they don't like unchecked power.