In the current political debate over critical national issues such as whether people should eat their pets, the most fundamental debate between Kamala Harris and Donald Trump, and indeed between Democrats and Republicans more broadly, is A discussion of one of the differences has been forgotten.
The difference is regulatory. At least with the exception of abortion and taxes, there is no more sharp contrast between the two parties.
It has never been clearer heading into the 2024 election that Democrats not only 1) want to regulate as much as possible, as quickly as possible, but also 2) intend to do so regardless of the law.
Faced with what is essentially a 50-50 proposition between staying in power and enduring Trump 2.0 deregulation, the Biden administration is pulling out all the stops, often pushing the limits of legality. In some cases, the breaking point has been exceeded.
For example, a few months ago, A federal appeals court threw out the rule. Promulgated by the Securities and Exchange Commission regarding fees and certain other practices employed by private funds. Reason: The court unanimously held that the SEC lacked legal authority to enact these rules.
The SEC did not appeal this decision. Instead, it started acting as if the rule still existed anyway. have Began taking enforcement action against some private funds.
You are right. The court said the SEC has no legal authority to do anything, but the SEC is acting as if it has the authority anyway.
This is not unusual. In Washington parlance, this is called “enforcement regulation.” And this happens when regulators try and fail (or don't try) to write rules, but start enforcing them anyway.
This is not the only extralegal tool favored by Democratic administrations. An even more egregious example is “letter regulation.” It works like this: The regulator will send a letter (or post on their official website) that basically says: On top of that. If not, start investigating further. You don't want that, do you? ”
In other words, it is equivalent to mafia protection money provided by the government. “It's a beautiful place…it would be a shame if it burned down.”
The Federal Deposit Insurance Corporation just did this a few months ago under its rules regarding passive ownership of some banks by large asset managers. It all started with the FDIC approving a notice of proposed rulemaking, which at first glance doesn't seem newsworthy. However, the FDIC then sent a letter to asset managers almost immediately requiring them to comply with many of the provisions of the proposed rule, even if it was just a suggestion.
In other words, it doesn't care that the rule doesn't officially exist yet, and behaves as if it does. And woe to those who do not follow our irregular rules.
Of course, this all violates both letter and spirit. administrative procedure lawwhich indicates how government agencies should act when promulgating regulations. The rules include some inconveniences for regulators, including the right for the public to comment on the proposals.
However, complying with the law can be difficult and time-consuming. After all, when it comes to a lot of things these days, for too many on the left, it seems like the ends justify the means.
This is not to say that there are no remedies for victims of government overreach. They can (and sometimes do) sue the government. But many people don't have the money to do that. Some companies do, but even if they win their case, they risk further ire from regulators next time.
Just ask PayPal. PayPal challenged the Consumer Financial Protection Bureau's proposed prepaid card rules in 2019. It's PayPal won in the endthe government responded to this lawsuit as follows: Two new studies Incorporate it into other practices.
As recent SEC actions against private funds show, defeating the government in court may not be enough, especially when progressive Uncle Sam is perfectly willing to ignore court rulings.
Regulation affects us all in ways we will never see. And while you may not be in the fray when it comes to things like private funds or large passive investments in banks, those regulations affect the market, and the market affects you.
Bank fees may increase. Your “free checking” account may become more expensive (or disappear altogether). Mortgage costs may increase. Your small business may not be eligible for financing.
The Administrative Procedure Act exists to protect those regulated. But the law also protects you and me. And it would be great if the Biden administration started following the law.
Former South Carolina Congressman Mick Mulvaney is a NewsNation contributor. Under President Donald Trump, he served as Director of the Office of Management and Budget, Acting Director of the Consumer Financial Protection Bureau, and White House Chief of Staff.
