Random Links related to the Federal, State, and Local Workforce

- Protecting the Federal Workforce.

- Federal Workforce Statistics Sources: OPM and OMB.

- The Early Federal Workforce.

- Standards of Ethical Conduct.

- Annual Report on the Federal Workforce.

- https://statutes.capitol.texas.gov/Docs/GV/htm/GV.651.htm.

- https://statutes.capitol.texas.gov/Docs/LG/htm/LG.146.htm.

- Can I Take It?

- Where do state and local government employees work?

- State and Local Governments Under the Fair Labor Standards Act (FLSA).

- FRED: Government: Local Government in Texas.

- CBPP: Some Basic Facts on State and Local Government Workers.

- USA.gov: Local governments.

Unitary v Plural Power

We're discussing the plural executive in GOVT 2306 at the moment and contrasting its use on the state level - in Texas anyway - with the unitary form on the national level. The former limits power, the latter enhances it.

This design issue is featured in the post below on the constitutionality of the Consumer Finance Protection Bureau and I though this passage helps illustrate the point.

- Click here for the article it is pulled from.

A federal appeals court has ruled that the "unchecked power" given to the director of the Consumer Financial Protection Bureau is unconstitutional.

The U.S. Court of Appeals for the D.C. Circuit ruled (PDF) on Tuesday, fashioning a remedy that gives the president the power to remove and supervise the agency’s director,Law.com (sub. req.) reports.

Judge Brett Kavanaugh wrote the majority opinion finding that the structure of the CFPB violated Article II of the Constitution, which gives the president authority to exercise executive power.

Under Supreme Court precedent, Congress may create independent agencies—agencies that allow removal of the director only for cause—that can exercise executive power, Kavanaugh wrote. To help mitigate the risk to individual liberty posed by their “massive power,” independent agencies have traditionally been headed by multiple commissioners or board members who act as checks on each other, Kavanaugh said. No head of an independent agency has operated without a check on his or her authority—“until now,” Kavanaugh said.

When the CFPB was established, it was structured to be headed by a single director rather than a multi-member commission. The director wields “enormous power,” with the power to enforce 19 federal consumer protection statutes, Kavanaugh said. The director can alone decide what rules to issue, how to enforce the laws, and what sanctions to impose.

“In short, when measured in terms of unilateral power, the director of the CFPB is the single most powerful official in the entire U.S. government, other than the president,” Kavanaugh said. “In essence, the director is the President of Consumer Finance.”
Rather than strike down the entire CFPB, Kavanaugh said, the court would strike down the provision requiring cause for removal of the agency’s director. “With the for-cause provision severed, the president now will have the power to remove the director at will, and to supervise and direct the director,” Kavanaugh wrote. “The CFPB therefore will continue to operate and to perform its many duties, but will do so as an executive agency akin to other executive agencies headed by a single person, such as the Department of Justice and the Department of the Treasury.”

From the Chicago Tribune: Court says Consumer Financial Protection Bureau is unconstitutional

It's organization violates the separation of powers.

- Click here for the article.

A U.S. consumer watchdog agency that helped unravel the Wells Fargo & Co. scandal has an unconstitutional structure because it gives too much power to its director, a federal appeals court ruled Tuesday.

The court said the way that the Consumer Financial Protection Bureau is organized violates the Constitution’s separation of powers because it limits the president’s ability to remove the agency’s director, currently Richard Cordray, a Democrat and former Ohio attorney general.

The ruling, if upheld, would curtail the authority of an agency that has been opposed by the banking industry and some Republican critics.

They view the CFPB — established as part of the Dodd-Frank reforms after the financial crisis of 2008 and 2009 — as a thorn in the side of the industry and one that has overreached in its regulation of consumer financial matters.

“This is a good day for democracy, economic freedom, due process and the Constitution,” Rep. Jeb Hensarling, R-Texas, chairman of the House Financial Services Committee, said in a statement.

The law now states that the bureau’s director can be removed only “for cause,” such as neglect of duty. The court said that conflicted with the Constitution, which allows the president to remove executives for any reason.

Hensarling has proposed overhauling Dodd-Frank, including replacing the CFPB’s single director with a bipartisan, five-member commission. On Tuesday he called the CFPB “arguably the most powerful and least accountable Washington bureaucracy in American history.”

But consumer advocates and some top Democrats decried the court’s ruling, saying it opened the door to the prospect that the CFPB’s efforts could be weakened under increased political pressure from the White House and Congress.

The law creating the CFPB “carefully struck a balance between protecting the consumer bureau from politics and the (financial) industry’s political allies while ensuring it was accountable and had effective oversight,” said Dennis Kelleher, president of the consumer advocacy group Better Markets.

The court’s ruling is “damaging to American consumers” and “it’s going to embolden the industry that’s been trying to kill” the agency, Kelleher said.

The CFPB said it disagreed with the ruling by the three-judge panel of the U.S. Court of Appeals for the District of Columbia, and asserted that the ruling would not slow its efforts to investigate wrongdoing and seek enforcement actions.

- Click here for more from the ABA Journal.
- Click here for the decision.

From the Atlantic: Medical Marijuana Won’t Become Legal Anytime Soon - A recent notice from the Drug Enforcement Administration denies a petition to have the drug accepted for medical use at the federal level.

From our discussion in class this evening.

- Click here for the article.

The Drug Enforcement Administration announced Thursday that it would reject petitions to reschedule marijuana as a Schedule II drug or lower. As a Schedule I drug, marijuana use is strictly prohibited outside of research. A Schedule II classification would have allowed its usage as a federally-approved prescription medical therapy.The rejection, according to a Federal Register notice, was based on an analysis by the Food and Drug Administration and recommendations from the Department of Health and Human Services.

According to NPR, in a letter sent to several petitioners and governors before the official notice, DEA chief Chuck Rosenberg characterized the decision as one not rooted in moral concerns or even lingering doubts about the dangerousness of marijuana, but about the legal obligation for Schedule II drugs to have medical efficacy. “This decision isn’t based on danger,” Rosenberg said. “This decision is based on whether marijuana, as determined by the Food and Drug Administration, is a safe and effective medicine.” Rosenberg, who has acknowledged the “promise” of some cannabinoids in medicine, has also called the prospect of “smoking the leaf of marijuana”—its most common usage—a “joke.”

The notice from the DEA spelled out three reasons why marijuana would not be rescheduled: a potential for and history of abuse and addiction, lack of accepted medical use, and a lack of safety information. The last two reasons are part of the drug’s failure of a five-part FDA test that states that for a medicinal drug “the drug’s chemistry must be known and reproducible,” “there must be adequate safety studies,” “there must be adequate and well-controlled studies proving efficacy,” “the drug must be accepted by qualified experts,” and “the scientific evidence must be widely available.” The clinical data that could even meet the FDA’s review standards was subject to intense scrutiny. In the end, the FDA could only find 11 research articles that met its review qualifications of being randomized, double-blind, placebo-controlled clinical studies.

The NLRB issues a rule redefining what it means to be an employee

This is a major story that applies to a variety of topics in 2305 - and a few in 2306 as well. It involves a controversy stemming from the actions of a company based in Houston - Browning-Ferris Industries.

Here's the issue put simply: Is Browning-Ferris responsible for the treatment of contracted employees? The decision by the NLRB was yes, but by only a 3-2 vote. This means that all employees of companies contracted by another (like temporary workers), have the same legal rights and protections as those employed by that company.

- Click here for the decision.

- Click here for background from The Hill:

The Obama administration is redefining what it means to be an employer. The National Labor Relations Board (NLRB) on Thursday handed down one of its biggest decisions of President Obama’s tenure, ruling that companies can be held responsible for labor violations committed by their contractors.

While the ruling from the independent agency specifically deals with the waste management firm Browning-Ferris, the so-called “joint employer” decision could have broad repercussions for the business world, particularly for franchise companies. Opponents of the action warn the ruling could hurt businesses as diverse as restaurants, retailers, manufacturers and construction firms, as well as hotels, cleaning services and staffing agencies.

. . . The NLRB ruling is a sharp departure from previous decisions that stated companies were only responsible for employees who were under their direct control. Without the power to set hours, wages or job responsibilities, the earlier rulings held, companies could not be held responsible for the labor practices of the contractors.

But the National Labor Relations Board charted a new course Thursday, saying the old standard is “increasingly out of step with changing economic circumstances.”

One argument made in favor of the decision is that current employment trends suggest more and more people will be temporary workers or contractors in the future. Uber drivers are an example. This decision is meant to guarantee they have the same rights - such as collective bargaining - as regular employees.

For further background:

- NYT: Labor Board Ruling Eases Way for Fast-Food Unions’ Efforts.
- NPR: NLRB Ruling Could Pave The Way For Fast-Food Unions.
- Forbes: Controversial NLRB Ruling Could End Contract Employment As We Know It.

Here's where this story applies to class topics: The National Labor Relations Board was not only created during the New Deal, it was found constitutional in a highly consequential case which redefined "commerce" as including manufacturing and labor. Otherwise the national government has no ability to pass and implement such a law. The NLRB has since been hugely controversial in an ideological sense because conservative business owners tend to oppose its efforts to strengthen workers rights, while liberals support it. The agency is a constant lightning rod and a repeated focus of political dispute. Conservatives - members of the Republican Party - would be happy in getting rid of it - but that has proven tough to do. Instead they've tried to weaken it. They've had better success there.

More on this soon - I think this story might be with us a while.

The History of the FAA

I'm highlighting the following from the Wikipedia on the Federal Aviation Administration since it illustrates points we will make later about the gradual development of the size and scope of the national government.

Notice the role Congress plays in establishing the agencies that eventually become the FAA and in defining the broad parameters of its powers. Also notice that the aviation industry pushed for the creation of the agency in order to enhance commerce - and look ts the role the (constitutionally mandated) post office played in it as well.

- Click here for the section.

The Air Commerce Act of May 20, 1926, is the cornerstone of the federal government's regulation of civil aviation. This landmark legislation was passed at the urging of the aviation industry, whose leaders believed the airplane could not reach its full commercial potential without federal action to improve and maintain safety standards. The Act charged the Secretary of Commerce with fostering air commerce, issuing and enforcing air traffic rules, licensing pilots, certifying aircraft, establishing airways, and operating and maintaining aids to air navigation. The newly created Aeronautics Branch, operating under the Department of Commerce assumed primary responsibility for aviation oversight.

In fulfilling its civil aviation responsibilities, the Department of Commerce initially concentrated on such functions as safety regulations and the certification of pilots and aircraft. It took over the building and operation of the nation's system of lighted airways, a task that had been begun by the Post Office Department. The Department of Commerce improved aeronautical radio communications and introduced radio beacons as an effective aid to air navigation.

. . . In 1938, the Civil Aeronautics Act transferred the federal civil aviation responsibilities from the Commerce Department to a new independent agency, the Civil Aeronautics Authority. The legislation also expanded the government's role by giving them the authority and the power to regulate airline fares and to determine the routes that air carriers would serve.

. . . In 1967, a new U.S. Department of Transportation (DOT) combined major federal responsibilities for air and surface transport. The Federal Aviation Agency's name changed to the Federal Aviation Administration as it became one of several agencies (e.g., Federal Highway Administration, Federal Railroad Administration, the Coast Guard, and the Saint Lawrence Seaway Commission) within DOT (albeit the largest). The FAA administrator would no longer report directly to the president but would instead report to the Secretary of Transportation. New programs and budget requests would have to be approved by DOT, which would then include these requests in the overall budget and submit it to the president.

The organizational flowchart for DHS

To elaborate on point below.

Click here for it.

What is the National Security Agency?

Here's the introductory paragraph from NSA's Wikipedia page:

The National Security Agency (NSA) is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S. government communications and information systems,[1] which involves information security and cryptanalysis/cryptography.

Histories and descriptions can be found in multiple other places online:

- Time Topics: NSA.
- Federaltion of American Scientists: NSA.
- Here is the FAS's history of the NSA.
- Electronic Frontier Foundation: NSA.
- And the official website here.

Top federal executive positions remain vacant

ProPublica reports on the number of top executive positions that remain vacant in the Obama Administration (click here for data).

All presidential administrations have vacancies. But an analysis of appointments data by ProPublica shows that President Obama hasn’t kept up with his predecessors in filling them. A greater share of presidentially appointed positions that require Senate confirmation were sitting vacant at the end of Obama’s first term than at the end of Bill Clinton’s or George W. Bush’s first terms. At least 68 of the positions remain vacant, including 43 that have been vacant for more than a year.

The vacancies have been spread across dozens of different departments and agencies, with some hit harder than others. At the Department of the Interior, for instance, six of its 18 appointed positions were vacant at the end of Obama’s first term. The department had three vacancies midway through Clinton’s presidency and only one midway through Bush’s.

The lack of appointed leaders can create problems. Too many vacancies can put agencies “in stand-down, waiting for policymakers to show up,” said Terry Sullivan, a political science professor at the University of North Carolina who has studied appointments.

Acting heads of agencies “don’t make any big decisions,” said Cal Mackenzie, a professor of government at Colby College who has studied appointments since the 1970s. “Your authority is not going to be recognized in the same way a Senate-confirmed appointee is going to be recognized.”

NPR points out that delaying or denying these positions can be a strategic decision by opponents who cannot terminate an agency, but want to make it difficult for the agancy to carry out its mission.

From TNR: Weather Models Get Sandy Right

We've been discussing mathematical models in class - those used to sift through polling data to try to predict how the vote will turn out next week as well as those that are used to help campaigns target likely supporters. Here's a story about mathematial modelling for weather events. Apparently forecasters got Hurricane Sandy exactly right.

We may not be able to tease weather forecasters for wrong predictions much longer.

The relevant agencies are the National Hurricane Center (Wikipedia) which is a division of the National Weather Service (Wikipedia). We'll look deeper at this federal agency in future classes.

From Texas Tribune: A Guide to the Texas School Finance Lawsuits

Catching up with an evolving issue in the state: following last year's budget cuts to schools, some districts sued the state. Texas Tribune provides background of the lawsuits here.

Conservatives v Business

Apparently business interests do not always line up with conservative goals.

From the NYT, a report that some government programs favored by business groups may be terminated or delayed by conservatives in the House:

Business groups that worked hard to install a Republican majority in the House equated Republican control with a business-friendly environment. But the majority is first and foremost a conservative political force, and on key issues, its ideology is not always aligned with commercial interests that helped finance election victories.

“Free market is not always the same as pro-business,” said Barney Keller, spokesman for the conservative political action committee Club for Growth.

There could be real-world consequences to the conservative rebellion. The 90-day extension of the highway trust fund that House Republican leaders say they will pass this week in lieu of a broad highway bill would keep existing projects moving for now. But business groups say few new government-funded infrastructure projects can get under way without longer-range certainty about federal backing.

FAA may rethink rule limiting use of digital reading devices - but not smartphones - on airplanes

Story in the NYT. The tests necessary to prove these devices cannot harm a flight are quite involved though, so the change will not happen soon:

Abby Lunardini, vice president of corporate communications at Virgin America, explained that the current guidelines require that an airline must test each version of a single device before it can be approved by the F.A.A. For example, if the airline wanted to get approval for the iPad, it would have to test the first iPad, iPad 2 and the new iPad, each on a separate flight, with no passengers on the plane.

It would have to do the same for every version of the Kindle. It would have to do it for every different model of plane in its fleet. And American, JetBlue, United, Air Wisconsin, etc., would have to do the same thing. (No wonder the F.A.A. is keeping smartphones off the table since there are easily several hundred different models on the market.)

Ms. Lunardini added that Virgin America would like to perform these tests, but the current guidelines make it “prohibitively expensive, especially for an airline with a relatively small fleet that is always in the air on commercial flights like ours.”
- Wikipedia: Federal Aviation Administration.

 

Some random topical posts on bureaucratic rulemaking . . .

For 2302 (primarily) a few links to recent stories regarding the federal bureaucracy and its rule-making authority.

- First, to patch up an omission in the notes, here is a link to the Office of Information and Regulatory Affairs, which is part of the White House's Office of Management and Budget and "was created by Congress with the enactment of the Paperwork Reduction Act of 1980 (PRA). OIRA carries out several important functions, including reviewing Federal regulations, reducing paperwork burdens, and overseeing policies relating to privacy, information quality, and statistical programs.'

- From the National Review, criticism of the newly created Consumer Financial Protection Bureau, which was created in the Dodd-Frank bill which itself was a response to the 2008 financial crash and the hunch by many that the crash was made possible by the removal of regulations that minimized the incentives for banks to make risky investments with deposits. The author reports on a conference which discussed whether the agency had sufficient checks on its activities, but seemed to accept the aide that reasonable regulations were needed. He also points out that Madison was concerned about the negative impact regulatory uncertainty can created in the private sector. The article also touches on the problems of regulatory capture and the revolving door.
-- The Rule of Law and the Administrative State.
-- Congress vs. Agencies: Balancing Checks and Efficiency: Gridlock, Organized Interests, and Regulatory Capture.
-- Federalist #62.

- From Reuters, comments on the difficulty of implementing the Dodd-Frank requirements that the derivative market be regulated. 60 regulations are required to be established by the Commodity Futures Trading Commission, and they must be justified by cost-benefit analyses, but this is apparently much more difficult to achieve than one might think.
-- Cost-Benefit Analysis and the Commodity Futures Trading Commission.

- From the Economist, more criticism of Dodd-Frank, and the general trend towards over-regulation and what impact it has on the economy.

- From the Huffington Post, a report on the ability of industry lobbyists to delay the implementation of the "silica rule" which is being considered by the Labor Department: The rule "would limit the amount of breathable silica dust to which workers in the construction and mining industries are exposed. Crystalline silica dust is found in sand and granite, and it has been known for decades to lead to the respiratory disease known as silicosis. Although the regulations would strengthen protections for workers, they're expected to raise costs for businesses that mine or build with materials involving silica."
- Worker Safety Rule Under Review at OIRA for Over a Year: A Tale of Rulemaking Delay.
- Click here for the status of the review.

Issa set his sights on the chair of the Postal Regulatory Commission

checking, balancing, oversighting, etc ....

From the Hill:

Key lawmakers have expressed concern that the Postal Service’s top regulator is spending too much time on the road at a time when the agency faces serious financial challenges.

Rep. Darrell Issa (R-Calif.), the chairman of the House Oversight Committee, and Sen. Tom Carper (D-Del.) have suggested that Ruth Goldway’s trips are hampering the Postal Regulatory Commission’s (PRC) ability to offer advice about proposals that would change how mail is delivered in the United States.

Goldway, who has served as chairwoman of the PRC since 2009, is currently attending a postal event in Switzerland, her third trip to that country in the past year. She has also traveled, in that same time span, to Belgium, China, Portugal, Puerto Rico and Scotland.

Some random posts on state and local matters

For 2301's look at federalism this week. 2302s should read these through to get an idea of the range of executive agencies that exist on all levels of government and what they do:

- The revenue streams of local governments in the DFW area may be limited by the end of the Barnett Shale boom. Lower natural gas prices might be benefiting consumers, are hurting local governmental revenues.

- The Electric Reliability Council of Texas (ERCOT) warns that the state's electricity grid (click here info on the grid from ERCOT) will be, once again, under severe stress this summer. The National Weather Service is predicting another brutal summer, which will lead to more AC use, and more drain on the grid. ERCOT says it is working with the Public Utility Commission of Texas to avoid blackouts. 

In case you did not know this, Texas has its own grid - click here for why, and here for what the grids in the US look like. Because Texas has its own grid, it is "exempt from most regulation by the Federal Energy Regulatory Commission, the Beltway agency that governs the transmission of electricity from state to state—say, by mandating transmission standards, or requiring that prices be listed in public forums."

- A Texas legislator argues that the traditional curriculum does not reach all students. Instruction in math and sciences ought to take this into consideration. She argues in favor of additional funding for vocational programs and the Texas Workforce Commission seems to agree.

- There are disputes in San Antonio over how transportation funds approved by a 2004 election ought to be spent.

The FDA and counterfeit drugs

To prep 2302 for our exploration of the executive branch next week, a radio story about the Food and Drug Administration's ability - given resources allocated to it - to regulate the sale of drugs, including the ability to detect a remove from the market - counterfeit drug. I'm not absolutely certain, but FDA funding is likely discretionary, so it can be cut at any time. The question is whether doing so is beneficial.

Obama Seeks to Consolidate Federal Agencies

From the Washington Post:

President Obama asked Congress on Friday for the power to consolidate parts of the federal government, proposing a first step of merging several trade- and commerce-related agencies under a plan that the White House said could eliminate more than 1,000 jobs and save $3 billion over 10 years.

Obama said he would focus initially on entities that deal with small business, but ultimately would like to get rid of inefficiencies throughout the federal government. He noted to an audience of small business leaders that the bureaucracy included five different entities involved in housing, and more than a dozen agencies that regulate food safety.

Commentators suggest that one problem this proposal faces is that each agency is protected by a constituency in Congress and in the general public. Iron Triangles are tough to dismantle once created. This will be an interesting test case of that theory. Here are the affected agencies:

Obama proposed combining the functions and staff of six trade- and commerce-related agencies and offices: the Small Business Administration; the Office of the U.S. Trade Representative; the Export-Import Bank; the Overseas Private Investment Corporation; and the Trade and Development Agency. The move would ease the regulatory burden on businesses and save money by eliminating duplicative functions such as human resources, the White House official said.

What is a recess anyway?

Senate Republicans continue to block President Obama's nominees to executive agencies and he responded recently by making recess appointments to two of them. The trouble is, Congress is technically still in session. It's not actually doing anything - it is in pro forma session, which the Senate glossary defines as:

A brief meeting (sometimes only several seconds) of the Senate in which no business is conducted. It is held usually to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other.
Republicans are simply trying to make it impossible for two agencies they do not care for - the National Labor Relations Board and the Consumer Financial Protection Board - from conducting business. The Constitution allows for the President to make appointments over the objections - or the inactivity - of Congress, but as with many things in the Constitution, it does not define the key term, in this case "recess."

Republicans, backed by business groups that also do not care for these agencies, are crying foul, claiming that Obama is exceeding his authority, and promise to contest this activity in court. The head of the executive branch should not be able to say when the legislature is and is not in session. But Obama's point is that the legislature is preventing the executive from carrying out its constitutional responsibility to execute the laws of the nation.

Here are more full and interesting takes on this issue:
- Jonathan Bernstein, and here.
- Ezra Klein (who wonders why Obama didn't make 200 rather than 4).
- Slate offers some history of the conflict over recess appointment.

New FAA Regulations

In the news today is a new regulation by the Federal Aviation Agency regarding the amount of time pilots can fly - and the amount of time they are expected to sleep between flights. As with many things government do - or decide to do - it is in response to a recent event. In 2009 a plane crashed on route to Buffalo, New York, and pilot fatigue was argued to have been a leading cause of the crash.

This is worth pondering in 2301 since one of the ideological issues commonly debated is what the proper role of government ought to be. Does this fit within that framework or not? Apart from ideological considerations comes the real world question of how governmental officials are likely to react - and how the general population might want them to react - when a bad thing happens and we think we know why it happened and that it might be prevented in the future.

One other point for 2301s to consider is the nature of the decision - it was made by an executive agency charged with overseeing air travel. It was not done through a democratic process. Is this a problem?

Some related links:

- FAA Regulations.
- FAA Regulations & Policies.
- Federal Aviation Regulations (wikipedia)

- UPS Pilots sue to be included in the rule.
- Story from WaPo.