Crime
In 2023, the NYPD made 13,600 arrests on the New York subway system. Of the 13,600 arrests, 124 different people were arrested 5 or more times in 2023 alone. When you look closely at these 124 repeat subway offenders, you find that they have been arrested a combined 7,500 times in their lifetimes. That is an average of over 60 arrests per person. If New York prosecutors and judges would just hold these 124 people accountable, they would massively reduce the violence on the subway system. No reasonable person could conclude that someone arrested 60 times in his life, including 5 in the last year, should continue to be on the street. And yet.
Separation of powers
On April 16, 2024, the Fifth Circuit U.S. Court of Appeals issued a ruling denying rehearing in the case Consumers’ Research v. Consumer Product Safety Commission (CPSC). In that case, the plaintiffs argued that the structure of the CSPC, a federal agency, violated the separation of powers doctrine because the enabling statute says that the U.S. President cannot not remove the CPSC commissioners except for cause. Judge James C. Ho, dissented from that ruling. In doing so he wrote the following: (note: I have removed his citations to make it easier to read).
I write separately to briefly reprise a previous observation I’ve made about Executive Branch employees more broadly. Under current statutory law, “[o]nly a tiny percentage of Executive Branch employees are subject to Presidential removal. The overwhelming majority of federal employees, by contrast, are protected against Presidential removal by civil service laws.” So “the President actually controls surprisingly little of the Executive Branch.” “[W]e should consider whether laws that limit the President’s power to remove Executive Branch employees are consistent with the vesting of executive power exclusively in the President.”
There is no accountability to the people when so much of our government is so deeply insulated from those we elect. Restoring our democracy requires regaining control of the bureaucracy. “The right to vote means nothing if we .... allow the real work of lawmaking to be exercised by . . agency bureaucrats, rather than by elected officials accountable to the American voter.” And we elect the leadership of the Executive Branch for the exact same reason—to ensure accountability to the American voter.
More separation of powers
The Federal Office of Personnel Management recently issued a final rule on Schedule F protections. I know you don’t know what that means. I barely do, but I will do my best to elucidate.
When Donald Trump was president, in an effort to “drain the swamp,” his administration instituted a policy to convert most federal bureaucrats into at-will employees. This was referred to as Schedule F because it was a new schedule coming after Schedule E in the executive branch civil service laws. Schedule F proposed to make it easier to fire federal employees. Woo hoo! President Biden, however, rescinded the Schedule F policy on his first day in office. He then went further to have his administration add even more protections for federal employees for the explicitly stated purpose to “safeguard the civil service from the return of a Trump-era policy that sought to convert most federal workers to at-will employees.” The final rule that the Federal Office of Personnel Management just released encodes these “safeguards.”
Now, go back and reread Judge Ho’s dissent above in the Consumers’ Research v. CSPC case. The Biden Administrations actions making it even harder to fire federal bureaucrats exacerbates the separation of powers issue highlighted by Judge Ho. Hopefully, these issues will make their way to the Supreme Court, and hopefully, the Supreme Court will restore balance to the separate powers of the U.S. Government.
As always, thank you for reading Judex! By the way, I can see in the Substack analytics that many of you are forwarding these articles to others. That’s wonderful. When you do, though, go ahead and suggest they subscribe. Thanks!