[block quote….don’t have monocle on my new laptop…]
“The U.S. must strike back at those who attacked us. But we must do so aware that we have other soldiers sitting deep and poorly defended among hostiles.
Three Americans were killed on a spot of land just at the border of Jordan, Syria, and Iraq last weekend. Republican senators and congressmen, so anxious to portray Biden as weak and to call for a vigorous military response, have blown past the most basic questions about the incident, ones that make both the Trump and Biden administrations look utterly foolish and depravedly negligent.
Why did three Americans die in a desolate corner of northern Jordan, near the Iraqi border and just a stone’s throw from a U.S. military outpost in Syria at Al-Tanf? Why were they there? Who authorized the mission? Why were they so vulnerable? Who attacked them and with what weapons?
The newspapers are pointing the finger at an unspecified “Iranian-backed militia.” Defense Secretary Lloyd Austin III was reluctant to identify the country from which the attack occurred. There’s a reason for this reluctance, as specificity would prove embarrassing.
Kataib Hezbollah is the radical Iraqi Shiite militia named by the Pentagon as the likely source of the attack. The group was previously led by Abu Mahdi al-Muhandis, an Iraqi-Iranian dual citizen who was killed in a 2020 U.S. drone strike along with Qasem Soleimani. Muhandis had once been something of a U.S. ally in the 2004 battles against the followers of Muqtada al-Sadr, another radical Shiite cleric, in Iraq. The media, if they mention Kataib Hezbollah at all, emphasize that, like other groups trading under the banner of Islamic Resistance in Iraq, it may be coordinated by the Iranian Quds Force. Less well advertised is that the group has been able to sustain and strengthen itself with U.S. arms that have slipped through the control of the U.S.-backed Iraqi army, including M1 tanks.
In its coverage, ABC news allowed that the deadly attack on our soldiers “highlighted a little-known mission in the barren desert area” known as Tower 22 and “sparked public questions about why it is that U.S. troops have been stationed in this remote location.” For answers, they turned to retired general Robert Abrams, who said correctly that it was part of an anti-ISIS mission going back to 2014. But it has “since grown to be able to support expanding missions and conducting operations for the last 10 years.”
Well, what missions are those? Some news watchers may remember Donald Trump announcing the return of all troops from Syria years ago and then later confirming that some would be staying — ultimately over 900 troops across a dozen installations.
The Trump-admin memoirs of former secretary of state Mike Pompeo and national-security adviser John Bolton feature both men bragging about keeping troops at Al-Tanf Syria, which was directly supported by Tower 22 in Jordan, to frustrate the Iranians, despite pushback from the Pentagon about the utility of the mission and against the explicit wish of President Trump to withdraw from an increasingly bewildering patchwork of conflict in Syria. Over time more uses were found for these tiny installations, including disrupting Syrian-Russian air defenses. Again, it’s a mission that was never authorized by Congress and is little known by the American public.
The Biden administration inherited these installations, which are running on dubious legal grounds, knowing that they were surrounded by hostile forces. This proved even more true after the Hamas attack on Israel on October 7 of last year.
Sunni states have tried to make peace with Israel as part of their long-term survival strategy of enduring Shiite pressure and staying as close as possible to the good graces of the United States. Radical Sunni and Shiite militia groups that hate Israel began acting furiously last year to punish the United States for its support of the Jewish state.
What did the US Army do to protect our bases subjected to attacks of this kind?
For a long time, the Army did nothing. Then it sent the obsolete rapid fire last resort gun called C-RAM. In Syria the Army threw in the old Avenger system. So far as is known, it has not been effective. Only at the al-Assad base was the Patriot system installed, but it has not been enough to stop missiles and drones ramming into the base, causing “numerous” (CENTCOM’s word) casualties, mainly traumatic brain damage to troops.
Sending our troops to man foreign, poorly protected, bases is unacceptable. It is an invitation to turn our bases into hostage zones.
He’s right, of course.
What mission was accomplished that was worth losing three reservists over? Can the American people name anything they’ve really gained? Of course not.
The United States must strike back at those who attacked us. But we must do so aware that we have other soldiers sitting deep and poorly defended among hostiles. There is no virtue in stubbornly sticking around. If their missions are unauthorized, and unproductive, these troops should be evacuated rather than left to sit out as local targets or to be used as easy steps up the escalation ladder for our enemies.
The Biden administration and the Pentagon need to come out and clear the air with the American people — explain where we have troops in the Middle East and why they are needed there, and then defend them adequately. If they feel that the justifications offered by their spokespeople won’t fly with the American public, there’s another option: Bring those troops home and out of harm’s way.”
“The Ninth Circuit appeal in United States v. Pheasant is a nondelegation case to watch.
One of the heavy artillery pieces in the battle to restore the separation of powers as designed by our Constitution is the nondelegation doctrine. It is about to get a serious test in a case, United States v. Pheasant, that is being briefed before the Ninth Circuit federal appeals court.
Last April, Judge Robert Jones of the federal district court in Nevada (a George W. Bush appointee with two decades on the bench) concluded that 43 U.S.C. § 1733(a), a provision of the Federal Land Policy and Management Act of 1976, violated the nondelegation doctrine by ceding too much law-making authority over federal lands to the Bureau of Land Management (BLM) within the Department of the Interior. If upheld, the ruling in Pheasant would call into question a vast number of regulations — many of them carrying criminal penalties — governing what Americans may do on federal land.
The BLM’s power is especially important in western states such as Nevada, in which 68 percent of the state is federal land subject to BLM regulations under Section 1733(a). Because of the case’s sweeping importance, it could easily end up at the Supreme Court. In light of the statute’s unusually open-ended grant of authority to the BLM to exercise what amounts to a general police power over huge tracts of the country backed by the force of the criminal law, it could present the sharpest test for the nondelegation doctrine before the current Court.
All Legislative Powers
The nondelegation concept is a simple one: Article I, Section 1 of the Constitution — the very first rule set forth in the document — begins: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” The federal government has no other legislative powers besides those “herein granted” in the Constitution (a point made explicit by the Ninth and Tenth Amendments). In short: If a power is legislative, it may only be vested in Congress and exercised by Congress.
As Justice John Marshall Harlan wrote in Marshall Field & Co. v. Clark (1892): “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” That principle is derived from the textual separation of powers, but John Locke’s Second Treatise on Government, in arguing against Parliament having the right to hand over law-making powers to the Crown, grounded it deeper in the philosophy of representative government:
The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.
The application of the principle, however, runs into the practical difficulty that Congress has always allowed for some level of executive and administrative action in detailing how laws will work. Chief Justice John Marshall, as far back as Wayman v. Southard (1825), recognized both the principle of nondelegation and its limits: “It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.” (Emphasis added.) In order to police the line, the Supreme Court has required that an act of Congress lay down an “intelligible principle” that an agency must follow in promulgating rules, so that it is possible for a court to judge whether the agency stayed within its mandate to apply the law rather than make it.
In most cases, the Supreme Court will strain to avoid a nondelegation problem by interpreting what a statute means and identifying what it does and does not empower an agency to do. If the regulation addresses a large and hotly contested question of public policy, the major questions doctrine will lead the Court to presume that statutory silence means that the agency wasn’t empowered to make a rule on the question. If the Court can determine what a statute means, there should likewise be no need for Chevron or similar doctrines of deference to the agency to figure it out. In either event, the question of what was delegated is settled.
Sometimes, Congress can use a general adjective to hand off a particular kind of detail to an agency; for example, if a statute says that a railroad may charge only “reasonable” rates for freight, the agency will have a lot of latitude to specify what rates are reasonable and what are not, and in what circumstances. In that situation, Congress drew the lines, and the agency decides where to color inside them. But what if a court can’t even find the line? Traditionally, only when there really is no standard to say what the agency can and cannot do will the Court take the further step of deciding that Congress has breached the nondelegation doctrine and totally abdicated its law-making authority to an agency.
The nondelegation doctrine remains controversial as an originalist matter, with some scholars and jurists arguing that it ought to be applied with more rigor and others claiming that the Framers didn’t believe in any such doctrine. That alone is one reason why the courts have been hesitant to reach the question whenever they can avoid it. But in Pheasant, there is no avoiding it.
As Big as the Sky
Gregory Pheasant was allegedly driving his dirt bike without a taillight in Moon Rocks, Nev., when he had a run-in with a BLM ranger on the Friday night of Memorial Day weekend in 2021. BLM officers were engaged in a “special operation” with federal law enforcement that night in Moon Rocks, a wide-open rocky desert landscape whose popularity with off-road bike and ATV riders had surged during the pandemic.
The stated aim of the law-enforcement operation was to ensure a “family-oriented recreational experience” at Moon Rocks. The Reno Gazette Journal had reported in March 2021 that the BLM was “considering whether to manage the area as a developed recreation site” with funding from the Nevada Commission on Off-Highway Vehicles. The article quoted a representative of the state commission opining that Moon Rocks was “a little bit Mad Max out there, especially over holiday weekends.” In other words, enforcement was being stepped up as an exercise of basic police power, and not for any reason particular to conservation or resource management.
Pheasant ended up charged with “resisting issuance of citation or arrest” and “failing to use required taillight at night” under a pair of rules found deep within the Code of Federal Regulations. The BLM’s basis for issuing those rules was Section 1733, which provides: “The Secretary shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands, including the property located thereon.” (Emphasis added.) The statute authorizes the BLM to create crimes, punishable by up to a year in prison or a fine of up to $1,000, by promulgating these rules.
As the district court observed, “management, use, and protection of the public lands” is a completely elastic term that the BLM has used to justify the creation of new crimes on an almost limitless number of topics never remotely mentioned by Congress, including “how long individuals can camp at a particular spot,” “what kind of seatbelts individuals must wear,” “whether saddle horses have the right-of-way over off-road vehicles,” a prohibition on “shooting firearms in particular areas near Winnemucca and Carson City,” and on “picking up rocks in certain parts of Humboldt, Pershing, and Washoe Counties,” and “prohibiting having hay, straw, or mulch that is not certified as weed-free on any BLM-managed lands” in Nevada. The “BLM has used this authority to write regulations criminalizing behavior that the state would normally criminalize, like outdated vehicle registration, coal exploration, horse adoption, noisiness, fraud, discrimination, and homelessness.” As a result, “the Secretary of the Interior has unfettered legislative authority to promulgate rules for over 48 million acres of land, which is 68% of the state of Nevada.”
Moreover, the secretary of the interior has, in turn, delegated rulemaking authority to state-level BLM directors:
Without any intelligible principle, the Secretary of the Interior has provided Executive employees with Congress’ unfettered legislative power to govern individual states. In a state like Nevada, these State BLM Directors are essentially single-person legislators and governors because they promulgate regulations (laws) and enforce the regulations (laws). . . .
Allowing Executive agencies to create the very crimes they are tasked with enforcing effectively turns them into the expositor, executor, and interpreter of criminal laws. . . . Essentially, in the words of [Justice Neil Gorsuch], “the nation’s chief prosecutor gets the power to write his own criminal code” on the public lands. (Alterations omitted).
Are any of these rules beyond the scope of the power granted to the BLM? How could you tell? As the court concluded, “There is no language in the statute that cabins the authority of the Secretary of the Interior to promulgate rules on behalf of the BLM.”
This is, to use a technical legal term, bonkers.
The government argued that a similar delegation of authority to the General Services Administration over government buildings had been upheld half a century ago by the Fourth Circuit, but the court was unpersuaded that this was analogous, given that rules confined to government buildings are inherently more specific just by virtue of the more limited setting.
In its appeal brief in the Ninth Circuit, the government relied on United States v. Grimaud (1911), which upheld rules under the Forest Reserve Act against grazing sheep on federal land without permission. The Forest Reserve Act, which was particular to forests designated by the president for conservation, aimed “to improve and protect the forest within the reservation, and to secure favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” It explicitly allowed the “egress and ingress of actual settlers residing within the boundaries of such reservations” but conditioned entry into the forest reservations “for all proper and lawful purposes” on the provision “that such persons comply with the rules and regulations covering such forest reservation.” Whether or not the Court in Grimaud was right to uphold the grazing rules, the statute rather clearly set aside forest reservations as a specially protected area for the purpose of preserving their plant life and explicitly empowered the creation of rules conditioning entry into the forest. Management of grazing was obviously the sort of thing Congress in the 1890s would have expected to be included in that authority. In Pheasant, by contrast, there is no limitation of topics or places within federal land — land that covers more than two-thirds of Nevada.
It’s much harder to justify sweeping agency powers when they are also sweeping in application. That’s one lesson of the Supreme Court’s vaccine-mandate cases: The justices were willing to accept a broad power to mandate vaccination for workers in federally funded health-care facilities because it was closely related to the power to fund such facilities, but it balked at reading a similar power into the workplace-safety rules for every business in the country.
Under the briefing schedule set by the Ninth Circuit, Pheasant’s response to the government’s brief is due February 19, and amicus briefs supporting Pheasant’s position will be due February 27. Anyone concerned about the lawless power of the administrative state should be watching.”
Stinky Wizzleteats
on February 1, 2024 at 5:02 am
Most important question missing: Why the Hell are we even there? Maybe their main function is as casus belli generators.
the obsolete rapid fire last resort gun called C-RAM. In Syria the Army threw in the old Avenger system. So far as is known, it has not been effective. Only at the al-Assad base was the Patriot system installed, but it has not been enough to stop missiles and drones ramming into the base
CRAM (ground version of Phalanx CIWS) is obsolete? And I know there’s been multiple improvement blocks but the love for Patriot missile system instead? I doubt it could respond in time to a drone. The effectiveness against longer range missiles been overrated, at least in the past.
dbleagle
on February 1, 2024 at 12:06 am
The CRAM is a fine last line of defense weapon. WTF shoot multiple million Patriots at cheapo drones? That is not what they are designed for. Plus, there are other kinetic and non-kinetic systems that defend well against drones for a lost less money. Leaving aside the question of WTF are we even doing over there. As for the KIA and WIA the Stranger said, “Well some days the bear eats you.”
***
Snowden’s remarks come a day after Rolling Stone reported that President Joe Biden’s Justice Department has been pressuring multiple British journalists to cooperate with prosecutors in its efforts to have WikiLeaks founder Julian Assange extradited to the U.S.
***
Stinky Wizzleteats
on February 1, 2024 at 5:30 am
Snowden’s lucky he ended up in Russia sort of by accident. Other than maybe China anyone else would’ve sold him down the river by now and Russia might have its issues but I’ll take Sochi over Shenzhen any day.
Sie haben die Übersetzung falsch verstanden. Das richtige Wort ist Scheiße.
rhywun
on February 1, 2024 at 5:34 am
Echt wahr
Sean
on February 1, 2024 at 6:59 am
I gave a fair warning by listing the band name. Who doesn’t like their metal covers with a ren faire twist?
Gender Traitor
on February 1, 2024 at 5:31 am
Good morning, Sean, rhy, Stinky, and Derpy!
Discovered a crack in my windshield yesterday morning, so this morning I get a break in the hot month-end-report action to go get it fixed. (Hell, no I’m not having them come to my office! I’d have to keep working!)
Stinky Wizzleteats
on February 1, 2024 at 5:54 am
The unexpected road debris causing a hairline crack that grows and grows is just one of the joys of owning a car.
Gender Traitor
on February 1, 2024 at 6:03 am
Some days during my commute it just seems as if there are dump trucks everywhere. I’m not even convinced they’re going anywhere – just driving around tossing gravel around like it was rose petals. 😒
Hasn’t gone to well so far. The least of my issues has been the recent unexpected rush of caesar dressing leaving me with a puddle of it on my salad.
But all in all, it’s a bevy of minor irritants rather than anything serious.
Gender Traitor
on February 1, 2024 at 6:10 am
I hope it improves ASAP! Meanwhile, Usually Reliable Co-worker just texted me that he’s sick and won’t be in, so I have to cover a few of his daily gotta-do’s, ideally before I go off to get my windshield replaced.
Twitter pic of Fetterman and better half up thread:
Aww…look at that happy couple, nothing going on there.
Gender Traitor
on February 1, 2024 at 6:14 am
You can sense the chemistry…kinda like that train derailment up near Cleveland.
Grosspatzer, Superstar
on February 1, 2024 at 6:26 am
WRT chemistry, Love Canal comes to mind.
Toxteth O'Grady
on February 1, 2024 at 6:43 am
Vampira.
Grosspatzer, Superstar
on February 1, 2024 at 6:11 am
Mornin’, reprobates!
Fourscore
on February 1, 2024 at 6:15 am
And a Great Morning to you and all t’others. Another fine day, last remnants of snow slowly disappearing. Looks like another week, at least, before we see much cooling off. Gotta love local Global Warming.
Grosspatzer, Superstar
on February 1, 2024 at 6:24 am
Mornin ‘, 4×20.
Gotta love local Global Warming.
On a zoom call yesterday a colleague from Bozeman stated that they were having a warm spell there. “About 10°F?” I said. Nope, high around 50.
Fourscore
on February 1, 2024 at 6:27 am
We may have set a local record yesterday. WeatherUnderground said 52, if official that’s record territory.
Gender Traitor
on February 1, 2024 at 6:15 am
Good morning, ‘patzie!
Cannoli
on February 1, 2024 at 6:18 am
It seems there’s been a roll call of the lurkers recently, so I’m popping in to say good morning to all! I appreciate this site and everyone who keeps it going. I probably will still be mostly lurking for the foreseeable future, though, because Baby Cannoli gets first dibs on my time.
Gender Traitor
on February 1, 2024 at 6:23 am
Good morning, Cannoli! Welcome back! 😃 Please don’t be a stranger – maybe pop in while Baby C is napping! (How old?)
Grosspatzer, Superstar
on February 1, 2024 at 6:38 am
Congrats!
*recalls months of sleep deprivation*
Totally worth it. Really.
Cannoli
on February 1, 2024 at 6:45 am
Thanks Patzer!
Ownbestenemy
on February 1, 2024 at 6:59 am
Even when they get older…still worth it. Even if they are little A-hole teenagers
Toxteth O'Grady
on February 1, 2024 at 6:27 am
Congrats! I remember when you said you were trying for one.
Cannoli
on February 1, 2024 at 6:29 am
Thanks Toxteth!
Fourscore
on February 1, 2024 at 6:36 am
I’m sure the youngest Glib would enjoy hanging out here, with the exception of the SF stuff. Congrats to you and the mister.
Cannoli
on February 1, 2024 at 6:47 am
Thanks Fourscore! We’ll start the glib training early, but now she’s focused on figuring out crawling.
Beau Knott
on February 1, 2024 at 6:18 am
Mornin’ all!
Gender Traitor
on February 1, 2024 at 6:24 am
Good morning, Beau!
Fourscore
on February 1, 2024 at 6:24 am
The warm weather has brought about a change in the deer/turkey behavior. Whereas they used to hang around all day, waiting for the handouts, the turkeys show up early, eat and run, and don’t come back. Yesterday a big Tom showed up, seems like he’s looking for a local girlfriend or two, three, whatever. He’s like a teenager with a new bike, just has to show off.
The deer have spurned me and have moved on to becoming more independent, The lack of snow allows them to grocery shop in their own secret places.
You fucking rock.
So awesome. Thank you for the mood lifter, CPRM!
“Sorry Jeb”
Come on. You know he had a flawless victory.
Please clap.
Steamboat!!!!!
BY STEAMBOAT MEAN….
Cleveland steamboat?
Fake diesel powered steamboat.
Minus One
Those pictures in Desantis office are hilarious.
Never get tired of CPRM’s productions. Something always new. Thanks
Fred as the Grand Poobah….heard he got 20 years for “trespassing”.
Is that Kim Jong Un?
Yes, and his hat from another episode.
I hope this link works.
Fetterman is trying to dispel divorce rumors.
https://twitter.com/JohnFetterman/status/1752862861326524903
Yeah, that body language will totally dispel any rumors. Uh-huh, yep.
(By the way, the En Fuego referred not to her looks, but to how she came in hot)
But they seem like such a warm and happy couple, just look at the picture
Seeing that is even funnier after today’s SugarFree joint.
I’d like to see him try to spell “dispel”.
For reference
Puttin’ on the Ritz! 😃
That’s not “date night”, it’s from a dress rehearsal.
Here’s the actual performance…
random memory from the insane asylum
scene: a group therapy session
Nurse: What’s your favorite animal?
Me: Cats. Because they’re indifferent to human suffering.
Cats are Shitlords, we are Orphans,
My answer: “That depends. Seafood bisque or sauce picante?”
That or just “pigs” ’cause bacon.
Honestly, that answer says a lot about you.
Every answer does when used like that.
Man rides wild lion
https://www.youtube.com/watch?v=6UoJbb_tGHo
Where’s all the fresh meat at?
They’re all trying to scrub browser history after reading SugarFree for the first time.
With a cloth?
/Asking for a
friendformer First Lady.A couple good articles today:
https://www.nationalreview.com/2024/01/questions-that-need-answering-about-our-mideast-military-outposts/
[block quote….don’t have monocle on my new laptop…]
“The U.S. must strike back at those who attacked us. But we must do so aware that we have other soldiers sitting deep and poorly defended among hostiles.
Three Americans were killed on a spot of land just at the border of Jordan, Syria, and Iraq last weekend. Republican senators and congressmen, so anxious to portray Biden as weak and to call for a vigorous military response, have blown past the most basic questions about the incident, ones that make both the Trump and Biden administrations look utterly foolish and depravedly negligent.
Why did three Americans die in a desolate corner of northern Jordan, near the Iraqi border and just a stone’s throw from a U.S. military outpost in Syria at Al-Tanf? Why were they there? Who authorized the mission? Why were they so vulnerable? Who attacked them and with what weapons?
The newspapers are pointing the finger at an unspecified “Iranian-backed militia.” Defense Secretary Lloyd Austin III was reluctant to identify the country from which the attack occurred. There’s a reason for this reluctance, as specificity would prove embarrassing.
Kataib Hezbollah is the radical Iraqi Shiite militia named by the Pentagon as the likely source of the attack. The group was previously led by Abu Mahdi al-Muhandis, an Iraqi-Iranian dual citizen who was killed in a 2020 U.S. drone strike along with Qasem Soleimani. Muhandis had once been something of a U.S. ally in the 2004 battles against the followers of Muqtada al-Sadr, another radical Shiite cleric, in Iraq. The media, if they mention Kataib Hezbollah at all, emphasize that, like other groups trading under the banner of Islamic Resistance in Iraq, it may be coordinated by the Iranian Quds Force. Less well advertised is that the group has been able to sustain and strengthen itself with U.S. arms that have slipped through the control of the U.S.-backed Iraqi army, including M1 tanks.
In its coverage, ABC news allowed that the deadly attack on our soldiers “highlighted a little-known mission in the barren desert area” known as Tower 22 and “sparked public questions about why it is that U.S. troops have been stationed in this remote location.” For answers, they turned to retired general Robert Abrams, who said correctly that it was part of an anti-ISIS mission going back to 2014. But it has “since grown to be able to support expanding missions and conducting operations for the last 10 years.”
Well, what missions are those? Some news watchers may remember Donald Trump announcing the return of all troops from Syria years ago and then later confirming that some would be staying — ultimately over 900 troops across a dozen installations.
The Trump-admin memoirs of former secretary of state Mike Pompeo and national-security adviser John Bolton feature both men bragging about keeping troops at Al-Tanf Syria, which was directly supported by Tower 22 in Jordan, to frustrate the Iranians, despite pushback from the Pentagon about the utility of the mission and against the explicit wish of President Trump to withdraw from an increasingly bewildering patchwork of conflict in Syria. Over time more uses were found for these tiny installations, including disrupting Syrian-Russian air defenses. Again, it’s a mission that was never authorized by Congress and is little known by the American public.
The Biden administration inherited these installations, which are running on dubious legal grounds, knowing that they were surrounded by hostile forces. This proved even more true after the Hamas attack on Israel on October 7 of last year.
Sunni states have tried to make peace with Israel as part of their long-term survival strategy of enduring Shiite pressure and staying as close as possible to the good graces of the United States. Radical Sunni and Shiite militia groups that hate Israel began acting furiously last year to punish the United States for its support of the Jewish state.
Since then, these undermanned installations have experienced as many as 150 attacks from missiles, drones, rockets, and the like. Stephen Bryen (https://weapons.substack.com/p/biden-dod-and-the-army-are-not-protecting) asks and answers the most important question:
What did the US Army do to protect our bases subjected to attacks of this kind?
For a long time, the Army did nothing. Then it sent the obsolete rapid fire last resort gun called C-RAM. In Syria the Army threw in the old Avenger system. So far as is known, it has not been effective. Only at the al-Assad base was the Patriot system installed, but it has not been enough to stop missiles and drones ramming into the base, causing “numerous” (CENTCOM’s word) casualties, mainly traumatic brain damage to troops.
Sending our troops to man foreign, poorly protected, bases is unacceptable. It is an invitation to turn our bases into hostage zones.
He’s right, of course.
What mission was accomplished that was worth losing three reservists over? Can the American people name anything they’ve really gained? Of course not.
The United States must strike back at those who attacked us. But we must do so aware that we have other soldiers sitting deep and poorly defended among hostiles. There is no virtue in stubbornly sticking around. If their missions are unauthorized, and unproductive, these troops should be evacuated rather than left to sit out as local targets or to be used as easy steps up the escalation ladder for our enemies.
The Biden administration and the Pentagon need to come out and clear the air with the American people — explain where we have troops in the Middle East and why they are needed there, and then defend them adequately. If they feel that the justifications offered by their spokespeople won’t fly with the American public, there’s another option: Bring those troops home and out of harm’s way.”
https://www.nationalreview.com/2024/01/a-major-showdown-over-the-power-of-agencies-to-make-up-crimes/
“The Ninth Circuit appeal in United States v. Pheasant is a nondelegation case to watch.
One of the heavy artillery pieces in the battle to restore the separation of powers as designed by our Constitution is the nondelegation doctrine. It is about to get a serious test in a case, United States v. Pheasant, that is being briefed before the Ninth Circuit federal appeals court.
Last April, Judge Robert Jones of the federal district court in Nevada (a George W. Bush appointee with two decades on the bench) concluded that 43 U.S.C. § 1733(a), a provision of the Federal Land Policy and Management Act of 1976, violated the nondelegation doctrine by ceding too much law-making authority over federal lands to the Bureau of Land Management (BLM) within the Department of the Interior. If upheld, the ruling in Pheasant would call into question a vast number of regulations — many of them carrying criminal penalties — governing what Americans may do on federal land.
The BLM’s power is especially important in western states such as Nevada, in which 68 percent of the state is federal land subject to BLM regulations under Section 1733(a). Because of the case’s sweeping importance, it could easily end up at the Supreme Court. In light of the statute’s unusually open-ended grant of authority to the BLM to exercise what amounts to a general police power over huge tracts of the country backed by the force of the criminal law, it could present the sharpest test for the nondelegation doctrine before the current Court.
All Legislative Powers
The nondelegation concept is a simple one: Article I, Section 1 of the Constitution — the very first rule set forth in the document — begins: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” The federal government has no other legislative powers besides those “herein granted” in the Constitution (a point made explicit by the Ninth and Tenth Amendments). In short: If a power is legislative, it may only be vested in Congress and exercised by Congress.
As Justice John Marshall Harlan wrote in Marshall Field & Co. v. Clark (1892): “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” That principle is derived from the textual separation of powers, but John Locke’s Second Treatise on Government, in arguing against Parliament having the right to hand over law-making powers to the Crown, grounded it deeper in the philosophy of representative government:
The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.
The application of the principle, however, runs into the practical difficulty that Congress has always allowed for some level of executive and administrative action in detailing how laws will work. Chief Justice John Marshall, as far back as Wayman v. Southard (1825), recognized both the principle of nondelegation and its limits: “It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.” (Emphasis added.) In order to police the line, the Supreme Court has required that an act of Congress lay down an “intelligible principle” that an agency must follow in promulgating rules, so that it is possible for a court to judge whether the agency stayed within its mandate to apply the law rather than make it.
In most cases, the Supreme Court will strain to avoid a nondelegation problem by interpreting what a statute means and identifying what it does and does not empower an agency to do. If the regulation addresses a large and hotly contested question of public policy, the major questions doctrine will lead the Court to presume that statutory silence means that the agency wasn’t empowered to make a rule on the question. If the Court can determine what a statute means, there should likewise be no need for Chevron or similar doctrines of deference to the agency to figure it out. In either event, the question of what was delegated is settled.
Sometimes, Congress can use a general adjective to hand off a particular kind of detail to an agency; for example, if a statute says that a railroad may charge only “reasonable” rates for freight, the agency will have a lot of latitude to specify what rates are reasonable and what are not, and in what circumstances. In that situation, Congress drew the lines, and the agency decides where to color inside them. But what if a court can’t even find the line? Traditionally, only when there really is no standard to say what the agency can and cannot do will the Court take the further step of deciding that Congress has breached the nondelegation doctrine and totally abdicated its law-making authority to an agency.
The nondelegation doctrine remains controversial as an originalist matter, with some scholars and jurists arguing that it ought to be applied with more rigor and others claiming that the Framers didn’t believe in any such doctrine. That alone is one reason why the courts have been hesitant to reach the question whenever they can avoid it. But in Pheasant, there is no avoiding it.
As Big as the Sky
Gregory Pheasant was allegedly driving his dirt bike without a taillight in Moon Rocks, Nev., when he had a run-in with a BLM ranger on the Friday night of Memorial Day weekend in 2021. BLM officers were engaged in a “special operation” with federal law enforcement that night in Moon Rocks, a wide-open rocky desert landscape whose popularity with off-road bike and ATV riders had surged during the pandemic.
The stated aim of the law-enforcement operation was to ensure a “family-oriented recreational experience” at Moon Rocks. The Reno Gazette Journal had reported in March 2021 that the BLM was “considering whether to manage the area as a developed recreation site” with funding from the Nevada Commission on Off-Highway Vehicles. The article quoted a representative of the state commission opining that Moon Rocks was “a little bit Mad Max out there, especially over holiday weekends.” In other words, enforcement was being stepped up as an exercise of basic police power, and not for any reason particular to conservation or resource management.
Pheasant ended up charged with “resisting issuance of citation or arrest” and “failing to use required taillight at night” under a pair of rules found deep within the Code of Federal Regulations. The BLM’s basis for issuing those rules was Section 1733, which provides: “The Secretary shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands, including the property located thereon.” (Emphasis added.) The statute authorizes the BLM to create crimes, punishable by up to a year in prison or a fine of up to $1,000, by promulgating these rules.
As the district court observed, “management, use, and protection of the public lands” is a completely elastic term that the BLM has used to justify the creation of new crimes on an almost limitless number of topics never remotely mentioned by Congress, including “how long individuals can camp at a particular spot,” “what kind of seatbelts individuals must wear,” “whether saddle horses have the right-of-way over off-road vehicles,” a prohibition on “shooting firearms in particular areas near Winnemucca and Carson City,” and on “picking up rocks in certain parts of Humboldt, Pershing, and Washoe Counties,” and “prohibiting having hay, straw, or mulch that is not certified as weed-free on any BLM-managed lands” in Nevada. The “BLM has used this authority to write regulations criminalizing behavior that the state would normally criminalize, like outdated vehicle registration, coal exploration, horse adoption, noisiness, fraud, discrimination, and homelessness.” As a result, “the Secretary of the Interior has unfettered legislative authority to promulgate rules for over 48 million acres of land, which is 68% of the state of Nevada.”
Moreover, the secretary of the interior has, in turn, delegated rulemaking authority to state-level BLM directors:
Without any intelligible principle, the Secretary of the Interior has provided Executive employees with Congress’ unfettered legislative power to govern individual states. In a state like Nevada, these State BLM Directors are essentially single-person legislators and governors because they promulgate regulations (laws) and enforce the regulations (laws). . . .
Allowing Executive agencies to create the very crimes they are tasked with enforcing effectively turns them into the expositor, executor, and interpreter of criminal laws. . . . Essentially, in the words of [Justice Neil Gorsuch], “the nation’s chief prosecutor gets the power to write his own criminal code” on the public lands. (Alterations omitted).
Are any of these rules beyond the scope of the power granted to the BLM? How could you tell? As the court concluded, “There is no language in the statute that cabins the authority of the Secretary of the Interior to promulgate rules on behalf of the BLM.”
This is, to use a technical legal term, bonkers.
The government argued that a similar delegation of authority to the General Services Administration over government buildings had been upheld half a century ago by the Fourth Circuit, but the court was unpersuaded that this was analogous, given that rules confined to government buildings are inherently more specific just by virtue of the more limited setting.
In its appeal brief in the Ninth Circuit, the government relied on United States v. Grimaud (1911), which upheld rules under the Forest Reserve Act against grazing sheep on federal land without permission. The Forest Reserve Act, which was particular to forests designated by the president for conservation, aimed “to improve and protect the forest within the reservation, and to secure favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” It explicitly allowed the “egress and ingress of actual settlers residing within the boundaries of such reservations” but conditioned entry into the forest reservations “for all proper and lawful purposes” on the provision “that such persons comply with the rules and regulations covering such forest reservation.” Whether or not the Court in Grimaud was right to uphold the grazing rules, the statute rather clearly set aside forest reservations as a specially protected area for the purpose of preserving their plant life and explicitly empowered the creation of rules conditioning entry into the forest. Management of grazing was obviously the sort of thing Congress in the 1890s would have expected to be included in that authority. In Pheasant, by contrast, there is no limitation of topics or places within federal land — land that covers more than two-thirds of Nevada.
It’s much harder to justify sweeping agency powers when they are also sweeping in application. That’s one lesson of the Supreme Court’s vaccine-mandate cases: The justices were willing to accept a broad power to mandate vaccination for workers in federally funded health-care facilities because it was closely related to the power to fund such facilities, but it balked at reading a similar power into the workplace-safety rules for every business in the country.
Under the briefing schedule set by the Ninth Circuit, Pheasant’s response to the government’s brief is due February 19, and amicus briefs supporting Pheasant’s position will be due February 27. Anyone concerned about the lawless power of the administrative state should be watching.”
Most important question missing: Why the Hell are we even there? Maybe their main function is as casus belli generators.
CRAM (ground version of Phalanx CIWS) is obsolete? And I know there’s been multiple improvement blocks but the love for Patriot missile system instead? I doubt it could respond in time to a drone. The effectiveness against longer range missiles been overrated, at least in the past.
The CRAM is a fine last line of defense weapon. WTF shoot multiple million Patriots at cheapo drones? That is not what they are designed for. Plus, there are other kinetic and non-kinetic systems that defend well against drones for a lost less money. Leaving aside the question of WTF are we even doing over there. As for the KIA and WIA the Stranger said, “Well some days the bear eats you.”
Biden in 2006: NSA Collection of Phone Records Violates Privacy
https://www.youtube.com/watch?v=h2qgU8kJt-0
14 years later
***
Snowden’s remarks come a day after Rolling Stone reported that President Joe Biden’s Justice Department has been pressuring multiple British journalists to cooperate with prosecutors in its efforts to have WikiLeaks founder Julian Assange extradited to the U.S.
***
Snowden’s lucky he ended up in Russia sort of by accident. Other than maybe China anyone else would’ve sold him down the river by now and Russia might have its issues but I’ll take Sochi over Shenzhen any day.
It’s True: Electric Eels Can Leap From the Water to Attack | National Geographic
https://www.youtube.com/watch?v=cQrEsq19TBY
…and some eels pout…
Ha Ha!
It ain’t Friday yet.
Morning, you fine people.
🌄👀☕
https://m.youtube.com/watch?v=KEl5Gi9l528
I give you FEUERSCHWANZ. 🎶🎶
Cookie Monster
Sie haben die Übersetzung falsch verstanden. Das richtige Wort ist Scheiße.
Echt wahr
I gave a fair warning by listing the band name. Who doesn’t like their metal covers with a ren faire twist?
Good morning, Sean, rhy, Stinky, and Derpy!
Discovered a crack in my windshield yesterday morning, so this morning I get a break in the hot month-end-report action to go get it fixed. (Hell, no I’m not having them come to my office! I’d have to keep working!)
The unexpected road debris causing a hairline crack that grows and grows is just one of the joys of owning a car.
Some days during my commute it just seems as if there are dump trucks everywhere. I’m not even convinced they’re going anywhere – just driving around tossing gravel around like it was rose petals. 😒
“The auto glass replacement arm needs to drum up some business – go drive the gravel trucks around.”
Brother-in-law effect.
Ah HA! I KNEW it!
I once got a gravel ding and just put Scotch tape over it, which eventually became part of the windshield.
“You have been assimilated.”
Good morning, TO’G!
Morning, Buckeye lass.
Mornin’.
Oh, how I laughed:
https://www.youtube.com/watch?v=0LAF3ZsKYXA
+1 CosmoCat
Oh, and good stuff, CPRM!
Morning folk
Good morning, U.
Hopefully it will improve.
Hasn’t gone to well so far. The least of my issues has been the recent unexpected rush of caesar dressing leaving me with a puddle of it on my salad.
But all in all, it’s a bevy of minor irritants rather than anything serious.
I hope it improves ASAP! Meanwhile, Usually Reliable Co-worker just texted me that he’s sick and won’t be in, so I have to cover a few of his daily gotta-do’s, ideally before I go off to get my windshield replaced.
😕
Twitter pic of Fetterman and better half up thread:
Aww…look at that happy couple, nothing going on there.
You can sense the chemistry…kinda like that train derailment up near Cleveland.
WRT chemistry, Love Canal comes to mind.
Vampira.
Mornin’, reprobates!
And a Great Morning to you and all t’others. Another fine day, last remnants of snow slowly disappearing. Looks like another week, at least, before we see much cooling off. Gotta love local Global Warming.
Mornin ‘, 4×20.
Gotta love local Global Warming.
On a zoom call yesterday a colleague from Bozeman stated that they were having a warm spell there. “About 10°F?” I said. Nope, high around 50.
We may have set a local record yesterday. WeatherUnderground said 52, if official that’s record territory.
Good morning, ‘patzie!
It seems there’s been a roll call of the lurkers recently, so I’m popping in to say good morning to all! I appreciate this site and everyone who keeps it going. I probably will still be mostly lurking for the foreseeable future, though, because Baby Cannoli gets first dibs on my time.
Good morning, Cannoli! Welcome back! 😃 Please don’t be a stranger – maybe pop in while Baby C is napping! (How old?)
Thanks! She is 6 months.
How has a cannoli not gotten eaten in that time?
This cannoli has hair on it, not very appetizing
I’m sure her little toesies are edible.
Ooh! Still fresh! 👶
Congrats!
*recalls months of sleep deprivation*
Totally worth it. Really.
Thanks Patzer!
Even when they get older…still worth it. Even if they are little A-hole teenagers
Congrats! I remember when you said you were trying for one.
Thanks Toxteth!
I’m sure the youngest Glib would enjoy hanging out here, with the exception of the SF stuff. Congrats to you and the mister.
Thanks Fourscore! We’ll start the glib training early, but now she’s focused on figuring out crawling.
Mornin’ all!
Good morning, Beau!
The warm weather has brought about a change in the deer/turkey behavior. Whereas they used to hang around all day, waiting for the handouts, the turkeys show up early, eat and run, and don’t come back. Yesterday a big Tom showed up, seems like he’s looking for a local girlfriend or two, three, whatever. He’s like a teenager with a new bike, just has to show off.
The deer have spurned me and have moved on to becoming more independent, The lack of snow allows them to grocery shop in their own secret places.
shutupshutupshutup…
Why do some people not appreciate a quiet office and yammer on so loudly?
I think it was Neal Boortz who used to call such folks “obliviots.”
I miss Neal Boortz on the radio.
Me too! I think I’m going to have to hunt up “Boo got shot!” soon!
…remembers when secrets were secret…