Feed aggregator

Gowdy wants Comey to testify again following Clinton email draft release

Fox News (Politics) - Tue, 10/17/2017 - 20:08
Following the FBI’s release of documents confirming that former FBI Director James Comey began drafting a letter on the Hillary Clinton email investigation months before completing several interviews, Rep. Trey Gowdy, R-S.C. said Comey needs to testify again.

Liberal Billionaires Are Never Villains

TownHall Latest columns - Tue, 10/17/2017 - 19:01
Charles Pierce, the resident radical-left political pundit at Esquire magazine -- that intellectual powerhouse best known for its Sexiest Woman Alive award -- is lamenting the role of Steve Bannon in electing President Trump, as well as Trump financial backers "Robert and Rebekah Mercer, the reactionary New York gozillionnaires."

Macron Shows Courage by Tacking to the Right

TownHall Latest columns - Tue, 10/17/2017 - 19:01
As a pragmatist, Macron was destined to lean right.

The NRA's Dangerous Alternative to a Bump Stock Ban

TownHall Latest columns - Tue, 10/17/2017 - 19:01
Asking the ATF to revisit this question means asking it to ignore the law.

Who Pays What in Taxes?

TownHall Latest columns - Tue, 10/17/2017 - 19:01
Politicians exploit public ignorance.

'Raising Awareness' Isn't Helping Much

TownHall Latest columns - Tue, 10/17/2017 - 19:01
"Awareness must be raised."

A CNN Smear

TownHall Latest columns - Tue, 10/17/2017 - 19:01
Did you happen to catch CNN's latest smear?

Per Capita Federal Spending Up Sevenfold Since 1941

TownHall Latest columns - Tue, 10/17/2017 - 19:01
Real per capita federal spending has increased more than sevenfold since fiscal 1941, which concluded on June 30 of that year -- or about five months before the Japanese bombed Pearl Harbor.

Free at Last!

TownHall Latest columns - Tue, 10/17/2017 - 19:01
Free at last! Free at last! That's the message for millions who don't get health coverage at work and, until now, faced two dismal options: going without insurance or paying Obamacare's soaring premiums.

Beware the Rape Allegation Bandwagon

TownHall Latest columns - Tue, 10/17/2017 - 19:01
"#MeToo" is the social media meme of the moment. In a 24-hour period, the phrase was tweeted nearly a half million times and posted on Facebook 12 million times.

Trump is the 'Talent,' Not the Head of State

TownHall Latest columns - Tue, 10/17/2017 - 19:01
In high school civics I was taught that, in America, the president has many roles.

Trump dossier firm's 'smear' tactics unveiled: Fusion GPS labeled critic a 'pedophile,' 'extortionist' and 'drug trafficker'

Fox News (Politics) - Tue, 10/17/2017 - 18:00
The self-described “strategic intelligence” firm Fusion GPS that was behind the controversial anti-Trump dossier has a track record of intimidation and smear tactics, according to congressional testimony and the firsthand account of a London-based Venezuelan journalist who said he was labeled a “pedophile,” “extortionist” and “drug trafficker” after criticizing one of Fusion’s clients.

Comey insisted no 'special' rules in FBI Clinton probe - while drafting 'exoneration statement'

Fox News (Politics) - Tue, 10/17/2017 - 18:00
Nine days after then-FBI director James Comey took the unusual step of circulating a draft to his inner circle laying the groundwork to recommend against charges in the ongoing Hillary Clinton email case, Comey insisted to Fox News that there are “no special set of rules” for anyone under the bureau’s scrutiny.

Trump spoke to families of Americans killed in Niger

Fox News (Politics) - Tue, 10/17/2017 - 17:45
President Trump has spoken to the families of all four U.S. soldiers who were killed in an ambush in the West African country of Niger earlier this month.

Fox News Poll: Guadagno trails Murphy by 14 in New Jersey governor race

Fox News (Politics) - Tue, 10/17/2017 - 17:00
In the contest for New Jersey governor, Republican Lt. Gov. Kim Guadagno trails Democrat Phil Murphy by double digits. That’s according to a new Fox News Poll of likely voters in New Jersey, the first this season.

Fox News Poll: Roy Moore, Doug Jones neck-and-neck in Alabama Senate race

Fox News (Politics) - Tue, 10/17/2017 - 17:00
Republican Roy Moore, the anti-Republican establishment candidate, is tied at 42 percent apiece with Democrat Doug Jones in the U.S. Senate race in deep-red Alabama.

Sean Spicer interviewed by Mueller's team for Russia probe

Fox News (Politics) - Tue, 10/17/2017 - 16:48
Sean Spicer, President Trump’s former White House press secretary, was interviewed this week by Special Counsel Robert Mueller’s team as part of the probe into Russia’s alleged attempt to meddle in the 2016 election, Fox News has confirmed.

Hawaiian judge blocks latest version of Trump's travel ban

Fox News (Politics) - Tue, 10/17/2017 - 15:30
A federal judge in Hawaii has blocked President Trump’s revised travel ban – just hours before it was expected to go into effect across the United States.

Biden accuses Trump of 'bizarre conduct,' ignores own history of on-camera behavior

Fox News (Politics) - Tue, 10/17/2017 - 15:15
Former Vice President Joe Biden said Tuesday that President Trump was undermining "the liberal world order" with his "bizarre conduct."

Digital Realty Trust v. Somers: Hasn't Chevron Deference Gone Too Far?

Cato Recent Op Eds - Tue, 10/17/2017 - 15:07

Ilya Shapiro

In the high-flying corporate world, employees from time to time suspect that a colleague or boss may be violating federal securities laws. But they may shy away from reporting these violations — from “blowing the whistle” — either to the employer or relevant authorities, because of a risk of retaliation. When Congress passed the Dodd-Frank Act in the wake of the Great Recession, it included an “anti-retaliation” provision to protect those employees who report securities violations to the government. The statutory text defines a “whistleblower” as an “individual who provides … information relating to a violation of the securities laws to the [Securities and Exchange] Commission.” The statute is unambiguous: If someone reports a violation of the relevant laws to the SEC, Dodd-Frank gives them a remedy against employer retaliation.

In 2014, Paul Somers sued his former employer, Digital Realty Trust Company, claiming that he was fired for complaining to senior management that his supervisor had violated the Sarbanes-Oxley Act of 2002 (one of the laws covered by Dodd-Frank’s securities-whistleblower provision). But Somers failed to report anything to the SEC, so Digital Realty moved to dismiss because the text of Dodd-Frank specifies protection for reporting to the SEC, not for reporting to company management.

The District Court for the Northern District of California disagreed, however, holding that the definition of “whistleblower” was ambiguous and that Chevron deference was owed to a 2011 SEC rulethat had redefined the term to include those who internally report violations to their employer. Digital Realty appealed to the U.S. Court of Appeals for the Ninth Circuit, but lost there as well. The Ninth Circuit not only agreed with the district court that the statute was ambiguous — and that Chevrondeference should apply to the SEC’s rulemaking — but also found that a better reading of the statute’s text protected internal reporting!

Digital Realty asked the Supreme Court to hear the case and the Court granted cert. Petitioner’s argument that the statutory text of the Dodd-Frank Act is unambiguous and thus forecloses respondent’s claim is rather straightforward: The law could not be clearer in specifying that if a person reports a violation of the covered laws to the SEC, Dodd-Frank provides him or her a remedy against retaliating employers. It’s a pretty basic point, so I’ll refer you to Digital Realty’s brief on the merits for more technical details.

More interesting, and potentially of broader impact, is the administrative-law angle, which was the focus of the amicus brief that I filed for the Cato Institute in support of Digital Realty. The last few years have of course seen renewed attention-academic, judicial, and journalistic-to the question of whether courts have become altogether too deferential to executive agencies. While Chevron deference (and its cousins, Auer and Seminole Rock deference) was originally justified as a necessary tool for preventing courts from unduly meddling in administrative decisionmaking, hasn’t the pendulum swung too far?

Regardless of one’s views on the debates over various deference doctrines, Digital Realty should be low-hanging fruit for the reassertion of Article III review of Article I overreach. Here, even if five Justices somehow find the statutory text to be ambiguous, the Supreme Court shouldn’t simply defer to the SEC’s interpretation of Dodd-Frank, because the agency ignored a basic tenet of administrative due process. Indeed, the SEC violated the Administrative Procedure Act (APA) when it failed to provide fair notice to the public that it would redefine — and thus expand — the definition of “whistleblower” in its final rule.

After all, in 2010 the SEC had agreed with Digital Realty’s position. In its Notice of Proposed Rulemaking (NPRM), the commission defined “whistleblower” in line with the statutory definition: “You are a whistleblower if, alone or jointly with others, you provide the Commission with information relating to a potential violation of the securities laws (emphasis added).” So far, so good. The SEC’s NPRM didn’t try to change the statute’s definition or otherwise indicate that it was contemplating doing so. Nor did it ask for comments on whether it should. Indeed, there was no mention at all that it would expand the statute’s meaning as to who qualifies as a “whistleblower.”

When the SEC promulgated its final rule the following year, however, something was different: The definition of “whistleblower” (for anti-retaliation purposes) was expanded to cover people who don’t report securities violations to the SEC, so long as they had undertaken the protected activity listed in the statute. The SEC didn’t even try to explain why it was changing the definition in its final rule. Nor did it cite to any public comment that led it to do so. It merely announced that it was expanding the definition of “whistleblower” to reach those who do not report covered securities violations to the SEC.

The APA’s notice-and-comment procedures simply don’t allow the SEC to do this. The APA requires that final rules be the “logical outgrowth” of proposed rules. In other words, the SEC can’t include things in its final rule that weren’t in the proposed rule, because that doesn’t give the public “fair notice” and an opportunity to comment on the legal interpretation. As the Supreme Court explained in Long Island Care at Home, Ltd. v. Coke in 2007, the APA requires an agency conducting notice-and-comment rulemaking to provide the public with “fair notice” of what will be, or might be, included in its final regulation. Yet there was nothing in the SEC’s NPRM that would have given any notice to the public that it was going to change whom Dodd-Frank would protect from retaliation.

Just last year, the Court reaffirmed in Encino Motorcars, LLC v. Navarro that procedurally deficient rules that violate the APA do not receive Chevron deference because they lack the “force of law.” The SEC regulation here was procedurally deficient because of the final rule’s fair-notice problem, so it shouldn’t qualify for Chevron.

The APA serves as a vital procedural check on an ever-growing administrative state. When agencies like the SEC flout these important administrative due-process provisions, the Court should not reward them by erasing the procedural protections Congress has enacted.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He filed an amicus brief supporting the petitioner in this case.

Syndicate

Syndicate content
Syndicate content