Tag Archives: Jonathan Adler

Ballot Bamboozles, Enablers, and Trust

10 Tuesday Nov 2020

Posted by in Election Fraud

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Since Saturday I’ve heard people in the media refer to “President-Elect Biden”, and I heard “President Biden” in one instance. He is neither, at least not yet. If and when the results of the election are certified in enough states to give Biden 270+ electoral votes, my attitude will be “Que Sera, Sera“. We can then move on to other challenges. But we aren’t there yet. Much remains to be settled in several states, and whether there is a change in the outcome of the presidential election might not be as important as cleaning up the mess that’s become of our election system.

Here’s a little primer on the signs of election fraud from the BBC. Several of those signs appear very much like what we see now. The list of red flags arising from the results of this election is long, and the denials from authorities in charge of the process in various jurisdictions look increasingly suspicious. We have turnout greater than the number of registered voters in several areas, dead voters, out-of-state voters, poll observers who were refused entry or held at impractical distances, late-night suspension of counts resuming after observers departed, ballot arrivals with no chain of custody, a huge number of Biden ballots with no votes for down-ballot candidates and few cases of the same for Trump. If you hadn’t guessed, the down-ballot discrepancy smacks of vote manufacturing. The sheer volume of last day “provisional” ballots is suggestive of ballot harvesting activity. And there are a number of other irregularities. A retired auditor/blogger compiled a nice list of red flags several days ago. This update is even better.)

As Jonathan Turley notes, as Americans we should welcome reviews of close elections. It would be a travesty to ignore these strong indications of fraud. Doing so would disenfranchise millions of voters, destroy confidence in our democratic system, and reward aberrant behavior. And for readers of this blog who might be aghast that we’re unwilling to simply absolve election authorities and other helpers who managed to produce or allow these red flags, the simple fact of the matter is we don’t trust them, and we don’t trust you either!

No, we do not trust authorities who tell us to ignore the kinds of obvious red flags that have arisen in this election. Election fraud has a long history in many of the jurisdictions now in dispute. This is just one form of the corruption endemic to one-party rule in many of these localities. No one is accountable and rules can be broken with the support of the local party machine. These are mini-swamps, and they should be drained.

The media is of course a giant swamp of its own, refusing to acknowledge or report on the very real warning signs of fraud. This is not journalism, and sadly, those who would contemplate violating the code are victims of intimidation. The very act of pronouncing Joe Biden the “President-Elect” at this stage is bad enough as an assertion of power. In addition, we have social media platforms censoring those who would call attention to obvious signs of fraud. This is an authoritarian play. It goes without saying that we do not trust the media, who are doing their best to game these challenges out of existence. Not gonna happen.

And neither do we trust those who would burn our cities, or forgive those who do; who would keep lists of those with whom they disagree and suggest reeducation; who would engage in eliminationist rhetoric; who would unfairly accuse opponents of racism, despite the racism and anti-semitism in their own ranks; who for years years would parrot false claims of Russian collusion, attempting to invalidate the last election; who would ignore the Biden family history of influence peddling and lies! And who would insist that the media’s proclamation of a winner in this election is beyond question. If that’s who you are, you are in the swamp. You’re either naive or evil. No, we don’t trust you.

The recent changes in election rules, ostensibly due to COVID, produced a chaotic situation many foresaw. I view the overwhelming support for these changes on the Left as wholly opportunistic. It created ample opportunities for fraud, and not only in the mini-swamps. Now, the presumed outcome, no matter how likely or how much you might like it, is no excuse for failing to adjudicate very real disputes, investigate or audit irregularities, and recount votes where state law or the courts demand it.

One reservation I have about the claims of fraud has to do with so-called violations of Benford’s Law. It is a “forensic” test of fraud based on statistical theory, but I do not trust the form in which it’s been invoked thus far. Violations have been cited in several counties over the past few days. However, a violation of this law obviously doesn’t constitute direct evidence of fraud, and the test is a reliable indicator only when the number of voters in different precincts vary by order of magnitude (there must be a mix of 10s, 100s, 1,000s, 10,000s). With precinct sizes, that is often not the case. There is a more reliable form of Bedford’s law, but I have not seen its application to any results in this election.

One last point that might be of interest: a reasonable scenario would leave the electoral college tied at 269. This would involve Trump taking NC and AK, while AZ, GA, and WI flip to Trump with MI and PA remaining in Biden’s column. The election would then be decided in the House of Representatives. However, the outcome there is not based on a straight vote. Instead, there is a single vote for each state delegation. As it turns out, Republicans hold the advantage there, despite their minority membership in the House.

EPA Concedes Puddles, Ditches to Owners

30 Thursday Jan 2020

Posted by in Environment, Federalism, Regulation

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Those who like their government served-up intrusive are reacting hysterically to the Environmental Protection Agency’s new Navigable Waters Protection Rule, which forbids the federal government from regulating waters that are not interstate waters or waters that aren’t or cannot be used in any way related to interstate commerce. The federal government will no longer have jurisdiction over normally dry, “ephemeral”  creek beds, private lakes and ponds unconnected to interstate waters, and most ground areas where rainwater pools, such as ditches on private property. This is a very good thing!

The emphasis of the new rule on interstate waters hews more closely to the constitutional limits of federal power than did the rescinded rule that had been imposed by the Obama Administration in 2015, which some called the Waters of the United States (WOTUS) rule (really an interpretation of “navigable waters”, or WOTUS as defined by the 1972 Clean Water Act). Christian Britschgi writes at Reason.com:

“The Obama-era rule was controversial from the get-go, with multiple Red states filing legal challenges claiming it exceeded the federal government’s authority to regulate water pollution. A slew of federal court rulings stayed the implementation of the rule in over half the states.”

Some of the straightforward differences between the new rule and WOTUS were mentioned above, but Anthony K. Francois of the Property and Environment Research Center gets into a bit more detail in his nice summary of these changes in federal authority.

In many cases, state and local governments already have regulatory authority over waters placed off-limits to the EPA. In fact, as Jonathan Adler wrote last summer, some of those state regulations are more stringent than the federal oversight now rescinded. That flies in the face of assertions by activists that states will be patsies in their dealings with property owners (the activists would call them “polluters”). So those who claim that the new rule will cause damage to the environment are really saying they only trust the EPA’s authority in these matters. They are also saying that no private citizen who owns property should be presumed to have rights over the industrial, commercial, or residential use of that property without review by the federal government. Under WOTUS, this represented such a severe abrogation of rights that it interfered with both productive activity and private enjoyment, not to mention the considerable confusion and costly litigation it prompted.

Weighing the costs and benefits of regulatory actions is a difficult undertaking. However, it is far too easy for regulators, with an imbalance of coercive power in their favor, to impose costly standards in locales where there may be little or no net benefit, and where individual property owners have no recourse. Regulators get no reward for protecting individual liberty and property rights, which skews their view of the tradeoff against potential environmental damage. Federal regulatory power is best kept within strict limits. The same goes for state and local regulatory power, but authority at those levels is at least more accountable to local interests on behalf of consumer, business and environmental concerns.

Courts and Their Administrative Masters

04 Tuesday Apr 2017

Posted by in Big Government, Regulation

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Supreme Court nominee Neil Gorsuch says the judicial branch should not be obliged to defer to government agencies within the executive branch in interpreting law. Gorsuch’s  opinion, however, is contrary to an established principle guiding courts since the 1984 Supreme Court ruling in Chevron USA vs. The Natural Resources Defense Council. In what is known as Chevron deference, courts apply a test of judgement as to whether the administrative agency’s interpretation of the law is “reasonable”, even if other “reasonable” interpretations are possible. This gets particularly thorny when the original legislation is ambiguous with respect to a certain point. Gorsuch believes the Chevron standard subverts the intent of Constitutional separation of powers and judicial authority, a point of great importance in an age of explosive growth in administrative rule-making at the federal level.

Ilya Somin offers a defense of Gorsuch’s position on Chevron deference, stating that it violates the text of the Constitution authorizing the judiciary to decide matters of legal dispute without ceding power to the executive branch. The agencies, for their part, seem to be adopting increasingly expansive views of their authority:

“Some scholars argue that in many situations, agencies are not so much interpreting law, but actually making it by issuing regulations that often have only a tenuous basis in congressional enactments. When that happens, Chevron deference allows the executive to usurp the power of Congress as well as that of the judiciary.”

Jonathan Adler quotes a recent decision by U.S. Appeals Court Judge Kent Jordan in which he expresses skepticism regarding the wisdom of Chevron deference:

Deference to agencies strengthens the executive branch not only in a particular dispute under judicial review; it tends to the permanent expansion of the administrative state. Even if some in Congress want to rein an agency in, doing so is very difficult because of judicial deference to agency action. Moreover, the Constitutional requirements of bicameralism and presentment (along with the President’s veto power), which were intended as a brake on the federal government, being ‘designed to protect the liberties of the people,’ are instead, because of Chevron, ‘veto gates’ that make any legislative effort to curtail agency overreach a daunting task.

In short, Chevron ‘permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the [F]ramers’ design.’

The unchecked expansion of administrative control is a real threat to the stability of our system of government, our liberty, and the health of our economic system. It imposes tremendous compliance costs on society and often violates individual property rights. Regulatory actions are often taken without performing a proper cost-benefit analysis, and the decisions of regulators may be challenged initially only within a separate judicial system in which courts are run by the agencies themselves! I covered this point in more detail one year ago in “Hamburger Nation: An Administrative Nightmare“, based on Philip Hamburger’s book “Is Administrative Law Unlawful?“.

Clyde Wayne Crews of the Competitive Enterprise Institute gives further perspective on the regulatory-state-gone-wild in “Mapping Washington’s Lawlessness: An Inventory of Regulatory Dark Matter“. He mentions some disturbing tendencies that may go beyond the implementation of legislative intent: agencies sometimes choose to wholly ignore some aspects of legislation; agencies tend to apply pressure on regulated entities on the basis of interpretations that stretch the meaning of such enabling legislation as may exist; and as if the exercise of extra-legislative power were not enough, administrative actions have a frequent tendency to subvert the price mechanism in private markets, disrupting the flow of accurate information about resource-scarcity and the operation of incentives that give markets their great advantages. All of these behaviors fit Crews’ description of “regulatory dark matter.”

Chevron deference represents an unforced surrender by the judicial branch to the exercise of power by the executive. As Judge Jordan notes in additional quotes provided by Adler at a link above, this does not deny the usefulness or importance of an agency’s specialized expertise. Nevertheless, the courts should not abdicate their role in reviewing an agency’s developmental evidence for any action, and the reasonability of an agency’s applications of evidence relative to alternative courses of action. Nor should the courts abdicate their role in ruling on the law itself. Judge Gorsuch is right: Chevron deference should be re-evaluated by the courts.

All The President’s Chutzpah

18 Friday Mar 2016

Posted by in Judicial Branch, Separation of Powers

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So, President Obama can repeatedly arrogate the authority to write and rewrite legislation, then insist that the legislature must convene hearings on his Supreme Court nominee in an election year. David Bernstein at The Volokh Conspiracy asserts that Obama is in no position to argue the virtue of Senate hearings on his nominee. That Obama condemns the Senate GOP leadership for refusing to act, which is consistent with the so-called “Biden rule“, after his own misadventures in executive ordering is particularly hypocritical. As Glenn Reynolds says in his link to the Bernstein piece:

“When they hold the whip hand, norms and traditions are stuffy and outdated. When they don’t, it’s all ‘have you no decency, sir?’“

Bernstein’s post has the lengthy but descriptive title “Re: Merrick Garland, it’s a bit late for the Obama administration and its supporters to appeal to constitutional norms requiring Senate consideration“. He first discusses an earlier post by Jonathan Adler noting that the text of the Constitution includes no requirement on the Senate to act on a judicial nominee with whom they disapprove. Instead, the customary hearings and votes on all nominees are a constitutional norm, a procedure that evolved over time in acting on the text of the Constitution:

“… as Adler has repeatedly documented, norms surrounding presidential appointments, especially judicial appointments, have increasingly been stressed and undermined in recent years by both parties. It’s not clear, if I were a Republican senator, why I’d use this particular opportunity to call for a cease-fire, especially one that the other side may not honor in the future.“

Obama’s disrespect for the constitution and constitutional norms is well known, if not always acknowledged. Bernstein cites a number of cases in which the President has acted without legislative authority (though Bernstein and I might approve of certain policy positions underlying those actions, not the actions themselves):

“More generally, President Obama has repeatedly promised to try to circumvent Congress using any arguably legal means available, on the rather extra-constitutional grounds, contrary to the norms attendant to the separation of powers, that ‘we can’t wait’ for Congress to pass legislation that the president favors.”

As I’ve long maintained, President Obama’s constitutional “scholarship” is dubious. In any case, he has no particular respect for the document. Perhaps I should not sell short his understanding of constitutional principles, since he knows all to well how to subvert them. But his real talents are political. It’s been suggested that Obama’s selection of a relatively “moderate” nominee is highly Machiavelian, intended to torture the GOP, as it were. Judge Garland might well be the best choice the GOP will have, depending on the outcome of the November elections. That might not be of much consolation. To quote Reynolds again:

“I think [Garland’s] a ‘moderate’ in the sense that he approves of government invasions that come from the left and the right.“

Gagging On Campaign Finance Reform

10 Wednesday Feb 2016

Posted by in Big Government, Campaign Finance

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Campaign finance is an area of internal conflict for some libertarians. On one hand, they do not believe in restrictions of any kind on freedom of expression. That implies no limits on what an individual can spend in support of a political cause, by themselves or in association with others, and whether it merely promotes a point of view or supports a political candidate. At the same time, libertarians are strongly opposed to rent-seeking activity, or efforts to use government power to promote private interests. Political spending is seen by many as an avenue for rent seeking, which suggests to them a need for limits on campaign contributions.

In fact, full-throated support of free speech and opposition to campaign limits do not stand in conflict. The reasons are: 1) such limits are an assault on free speech; 2) campaign contributions represent “small change” in the larger scheme of rent-seeking pursuits; 3) contributions seldom represent direct efforts to influence policy; and 4) imposed limits have a detrimental effect on the ability of elected officials to do their jobs.

Speech

Free speech, long interpreted by the courts more broadly as free expression, is protected by the First Amendment to the U.S. Constitution. This includes political expression, but traditionally it included campaign contributions as well, the latter being an obvious mechanism by which one can express views. However, the Supreme Court has upheld statutory limits on individual contributions to specific campaigns, as well as disclosure rules, on the grounds that they prevent corruption (Buckley v. Valeo and more recently McCutcheon v. Federal Election Commission(FEC)). I view the contribution limits as a contravention of the First Amendment, denying an enumerated right on the grounds that it “might” lead to corruption. If preventing corruption is the sole rationale for these limits, then government itself should be sharply limited, as it most certainly leads to graft and corruption at the expense of relatively powerless taxpayers.

Citizens United

A well-known Supreme Court case decided in 2010 involved independent political speech, as opposed to expression of political preference revealed by campaign spending. This was Citizens United v FEC, in which the Court ruled that political speech cannot be restricted on any basis other than corruption. As described by Ilya Shapiro, the case is widely misunderstood. One point of interest here is that the case related to speech by an organization rather than an individual. The Court ruled that a corporation (a nonprofit in the case) could not be prevented from airing a film critical of Hillary Clinton, striking down provisions of the Bipartisan Campaign Reform Act of 1990 (McCain-Feingold) under the First Amendment.

The Citizens United decision was NOT about campaign contributions. As an interesting aside, in a search of cartoons related to campaign finance, a great many imply that the Supreme Court abolished such limits in Citizens United. It did not. Even given some level of disaffection, it is hard to account for the near-complete lack of understanding about the case.

More informed critics of the decision bemoan that fact that it allows speech by corporations (and unions and other associations) to go unlimited, though they don’t seem to mind the absence of limits on political speech by media corporations. (See Eugene Volokh’s view in the Brown Daily Herald and Michael McConnell’s reinterpretation of Citizen’s United as a Press Clause case in the Yale Law Journal.) The critics also fail to recognize that corporations are associations of individuals, who are otherwise subject to no restrictions on independent speech or on what they can spend to speak independent of any political candidate (as established in Speechnow.org v. FEC in 2010). The technical treatment of a corporation as a “person”, which many find objectionable, is beside the point. Only by distorting the meaning of the First Amendment can any limitation be placed on the freedom of individuals to speak in association with others.

Jacob Sullum covers the confused legal thinking of leading Democrats Hillary Clinton and Bernie Sanders on campaign finance reform, and on Citizens United in particular. Jeb Bush is no better. Most of the opposition to the decision centers around the notion of “balancing” speech, but Sullum offers a piece of wisdom from a 1996 quote of future Supreme Court Justice Elena Kagan: “the government may not restrict the speech of some to enhance the speech of others.”

Corporate Campaign Spending

Another point raised by Ilya Shapiro is that corporate spending growth has neither accelerated nor decelerated in the wake of Citizens United. Moreover, restrictions on direct campaign contributions are still in place. However, campaign contributions are a relatively small percentage of corporate “influence spending”, averaging roughly 10% of the total between 2007 and 2012 for 200 large “politically active” corporations. Thus, direct campaign contributions are unlikely to be the primary avenue for rent-seeking activity. They might help buy “access” to politicians, but they may not be especially effective in influencing policy. These points are supported by University of Missouri economist Jeffrey Milyo in “Politics Ain’t Broke, So Reforms Won’t Fix It“. Milyo marshals empirical evidence that should make us skeptical of campaign finance reform efforts.

Incapacitated Legislators

Jonathan Adler of Case Western emphasizes the legislative dysfunction created by campaign finance reforms. McCain-Feingold places limits on funds candidates can receive from their political parties and other sources, forcing them to spend a large proportion of their time on fundraising (and placing incumbents at a distinct advantage). If there is a shred of sincerity in the populist insistence that members of Congress be subject to tighter term limits, or that Congress is woefully unproductive, then full repeal of these limitations should be a priority.

Visibility Versus Effectiveness

The chief advantage of combatting corruption through regulating campaign finance is that it is a visible target. However, it is a target too rich with free speech implications. Disclosure requirements are one thing (through arguments can be made against infringements on the privacy of contributors as well). Limiting forms of expression outright is draconian, and reformers are unlikely to be satisfied until campaigns are funded entirely by taxpayers. Attacking “corruption” via limits on campaign contributions presumes a need to protect both contributor and recipient from their own guilt. Even if contributions help gain better access to an elected representative, it does not imply that the representative will act on motives counter to the perceived public merits of an issue. Moreover, the argument that limits on direct contributions to candidates “keep money out of politics” is flawed. Limits simply change the distribution of political spending, increasing the reliance on bundlers and organizations like Super PACs, and shifting the tables in favor of incumbents.

There are far better ways to combat corruption among legislators and others in government, some with more severe drawbacks than others. Term limits are one possibility, but would deny voters of legitimate choices. Another option is to allow candidates to have unrestricted access to campaign funds through central organizations, rather than forcing them to rely on independent Super PACs, which cannot always be relied upon to craft a candidate’s preferred messages. Immediate disclosure of contributors and amounts would help to bring more transparency to the campaign finance process. Stiffer disclosure requirements for “bundlers” would also help. Perhaps elected executives could be prohibited from appointing bundlers to positions of authority, though a precise definition of “bundler” might become contentious. There are other reform possibilities related to limiting permissible lobbying activity.

The libertarian’s dilemma with respect to campaign finance is easily resolved once the focus is placed squarely on protecting individual rights. In the end, the best defense of individual rights and against corruption in government is to limit government. It’s wise to place strong reigns on an institution that operates by virtue of coercive authority. The danger was well-acknowledged by the limits on government power enshrined in the Constitution.

Will SCOTUS Grant Executive License To Rewrite Laws?

07 Saturday Mar 2015

Posted by in Obamacare

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Can a piece of legislation say any old thing, leaving the executive branch as the arbiter over what the law “should” say?  Can the executive decide a law means one thing ex ante and another ex post? That would be bizarre under the U.S. Constitution, but the Obama Administration has arrogated to itself the role of legislator-in-chief in its implementation the Affordable Care Act (ACA), aka Obamacare, effectively rewriting the law by repeatedly granting waivers and delaying key provisions. And the apparent legal doctrine of “executive license” to rewrite laws would be affirmed if the Supreme Court rules for the government in King v. Burwell.

The case, which was argued before the Court this week, revolves around whether the ACA allows subsidies to be paid on health insurance purchased by qualified consumers on federal exchanges. The plaintiffs say no because, in the “plain language of the statute”, subsidies can be paid only for health insurance purchased on exchanges “established by the state”. A ruling is expected in June.

The provision in question was intended to incent state governments to establish their own exchanges. Most states chose not to do so, however, instead opting to allow their citizens to purchase insurance on a federal exchange. Subsequently, the IRS overrode the provision in question by granting subsidies for purchases on any exchange. The case will be historic if the federal exchange subsidies are overturned, but if not, the ruling will still be historic in setting a precedent that the executive branch can enforce a view of Congressional intent so divergent from written law.

The most interesting aspect of the SCOTUS hearing was Justice Kennedy’s expressed concern that a ruling for the plaintiffs would create a situation in which the federal government coerced states into establishing exchanges, posing a conflict with principles of federalism. The Wall Street Journal was fairly quick to point out that the subsidies were intended as an incentive for states, not unlike many other incentives for state participation incorporated into a wide variety of federal programs:

“If Governors decline to establish an exchange, their citizens are not entitled to benefits, but that is not coercion. That is the very trade-off that is supposed to encourage states to participate. If the subsidies will flow no matter what, few if any states would become the partners the Administration wanted.

More to the point, federalism is supposed to protect political accountability. Two-thirds of the states made an informed decision to rebuff ObamaCare, but if voters prefer otherwise, they can elect new Governors who won’t. If federal subsidies flow no matter what, then states aren’t presented with a real choice. That isn’t how federalism works in the American system. As Justice Kennedy rightly noted, the exchange decision was partly ‘a mechanism for states to show they had concerns about the wisdom and workability of the act in the form that it was passed.’”

Jonathan Adler has some thoughts on the same issues here and here. At the second link, Adler gives a more detailed explanation of Kennedy’s concern, which involves additional regulatory implications for the states. Adler also  covers some court precedents for the kind of “coercion” at issue in King. On one case, New York v. United States, Adler says:

“In the very case that established the current anti-commandeering doctrine, the Court said there was no problem with Congress using its regulatory authority to encourage state cooperation.”

The Court would be reluctant to rule for the plaintiffs based on a principle contrary to so many of its own previous rulings. Such a justification would appear to undermine the existing extent of federal direction of state activity — a possible silver lining to a ruling for the government. But Adler also notes that what is so unique about the ACA relative to earlier precedents is that so many states decided to opt out, and there is plenty of evidence that they did so with their eyes wide open. The loss of the federal subsidies was not the only consideration in those decisions:

“… while states that choose to forego subsidies are exposing their citizens to an increase in one regulatory burden, they are relieving their citizens of others, and at least some states are perfectly happy to make that choice.”

An amusing analogy to the distinction between federal exchanges and state-established  exchanges is made by Jonathan Cohn in the Huffington Post. He contends that federal and state exchanges are comparable to the the choice between butter and oil in a pancake recipe from The Joy of Cooking. You get pancakes either way, says Cohn. Therefore, he asserts that the case against the government in King is based on a specious distinction. Sean Trende at Real Clear Politics point out that the two kinds of pancakes are not the same. If Congress wishes to reward the use of butter, then one should expect the government preserve that distinction in distributing rewards.

Trende points to another distinction missed by Cohn: suppose Congress also said that the batter must be whipped by a blender at 300 rpm. In the case of Obamacare, Congress stated that an exchange must be established by a state to qualify buyers for subsidies, and it did so with the full intent of gaining cooperation from states in shouldering the administrative burdens of the law. Of course, different pancakes might be close enough, but in the end, specific language was used by Congress to create incentives for the use of certain ingredients and a particular mixing technique. The meaning of the pancake law is clear enough and is independent of whether administration officials can dream up substitutes, even if they are right out of The Joy of Cooking.

The four statist justices (some claim they are liberal) emphasized the dire consequences that a ruling for the plaintiffs would have on the insurance market and on individual buyers in states using the federal exchange. While the impact could be mitigated by the Court in various ways, the impact itself has been exaggerated by Obamacare supporters. This piece at Zero Hedge examines the likely impact in detail, but it fails to discuss a few significant benefits related to the employer and individual mandates to residents of states without their own exchanges.

Justice Kennedy is unlikely to side with the government in this case, despite his concerns about coercive federal policy. Justice Roberts was silent for almost the entire hearing, and it is not clear whether he will side with the consequentialists, find another avenue for upholding the subsidies, or defer to the plain language of the law. The Court might engage in a form of avoidance, finding  a way to dismiss the case on unexpected grounds such as a lack of standing (though few consider the plaintiffs’ standing to be an issue). That would effectively grant the administration carte blanche in rewriting legislation.