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I don't know that any of these are great examples. Let's approach them individually:
Pregnant Worker's Fairness Act
It's a bit academic, but it should be noted that the EEOC doesn't actually have Title VII rulemaking authority. The "rules" they promulgate are merely interpretive documents that inform businesses on how to comply and inform courts on the agency's interpretation. The courts themselves are only bound to follow EEOC guidance if it's "reasonable". Now, there are decisions out there that say that courts can't just wave these away and should give the agency deference, so there's a pretty big hurdle to overcome if you want to go against this guidance, and it gets pretty complicated here, but suffice it to say that courts aren't bound by these rules the same as they would if they were promulgated by an agency that actually had rulemaking authority. It should also be noted that the EEOC still has to follow the APA when it comes to procedural matters in promulgation (like notice and comment), so this lack of authority doesn't exactly make it easy for them to run wild.
As far as the actual rule is concerned, it's hard to say from a Republican perspective what the EEOC should have actually done. Saying outright that the law didn't apply to abortion would have created a situation where the EEOC guidance was directly at-odds with any reasonable canon of legislative interpretation; I don't think any textualist could argue with a straight face that abortions aren't pregnancy-related. Saying nothing about the matter isn't an option either. Since they're still bound by the APA, they have to address the comments they received, and they received plenty of comments about abortion. And even if they could have just omitted the abortion section, all that really does is kick the can down the road for when a court actually has to decide the matter, and it's unlikely that any but the staunchest anti-abortion judge would rule that abortions aren't related to pregnancy.
But that's all irrelevant because it's unlikely that this rule (or lack thereof) would ever result in litigation. The rules pretty clearly state that the effect of this guidance is that an employer is required to give a woman leave (paid or unpaid) to receive an abortion. While this seems like raw culture war bait, the reality is that, excepting for circumstances where someone is trying to rub it in an employer's face, no one is specifically asking for time off to get an abortion. I've personally never had an employer ask about the nature of any medical procedure I've taken time off to get, or had them ask me which doctor I was going to, and if a doctor's excuse is required, I doubt many employers are going to do internet research to determine if this is a doctor who exclusively performs abortions. Employers generally aren't allowed to ask employees about medical conditions that aren't work-related, except to verify leave, although as long as a doctor confirms that the absence is for a medical reason they can't really inquire further. And I doubt they would, since hunting for people who are getting abortions means, practically speaking, that they'd have to investigate every employee's medical leave, which I doubt any really want to do. There may be some unlikely confluence of factors where this could become a real issue, but I doubt it. Most women seeking abortions aren't going to tell their employers that they need time off specifically to get one.
If Republicans felt that strongly of this, they would have sought to get specific language into the bill. They didn't, and complaining about this is just them getting hoisted by their own petard given the electoral consequences involved.
FFLs When the entire point of specific statutory language is to expand a definition, you can't complain too loudly when that definition gets expanded. If you had sole rulemaking authority with regards to this, how would you expand the definition to conform with the new law without simply restating the old definition? I'm sure you can think of a dozen ways that this could be done, but that's beside the point. The point is that someone has to come up with these definitions and they have to conform with the statutory language without being overbroad. But that's tricky. The problem here is that there are two basic categories that are uncontroversial. One is the people who are actually running gun stores who need FFLs for legitimate business purposes. The other is people who simply have a gun they don't want anymore and want to sell it. But there's a third category of people we've talked about before who the government really doesn't like — people who want to sell guns part-time or as a hobby. You mentioned in a previous post how the ATF no longer will issue FFLs for hobbyists. You can disagree with that stance all you want, but it seems to me that Congress agrees with that and that was the specific intent behind the change in language. Now it's up to the ATF to flesh out that definition to cover the myriad circumstances in which someone might be selling guns "for profit". And that's hard! The problem as I see it doesn't stem so much from the law itself or ATF's interpretation of it but that there is a group of people for whom any further restrictions on gun sales is bad and needs to be stopped. They simply aren't arguing that the law was a good idea but ATF bungled the implementation; they're arguing that the law was a bad idea to begin with and using the ATF's interpretation as proof. But those are two separate arguments.
FACE Act It's telling that this law has only become controversial in recent years, after the Biden Administration used it aggressively in the wake of Dobbs. For the first 30 or so years of its existence, the fact that it was never used in cases of church vandalism was never an issue. At least not enough of an issue for 2 Republican presidents to invoke it in 12 years, one of whom was devoutly religious and the other of whom was devoutly into culture warring. It's also telling that the act also allows for private enforcement via a civil cause of action that few parties seem bothered to sue under. That being said, anti-abortion protestors necessarily do most of their work when the place is open and in full view of the public. Most of the church vandalism was done at night by people who actually disguised themselves. One type of crime is much easier to investigate than the other.
Of course, that doesn't really apply to the Nota case, because the perpetrator was caught in the act. But it doesn't compare to the Houck case, at least if you actually look at the procedural posture. The information in the Nota case was filed the day before the plea was entered. This itself was several months after the incident. What this suggests was that this was already a done deal by the time it was even on the court's docket; for all we know, the prosecutor could have threatened to throw the book at Nota before offering a misdemeanor charge and a sentencing recommendation as a lifeline. Houck, on the other hand, was found not guilty by a jury. For all we know he could have been offered the same deal as Nota but turned it down; I'd be surprised to say the least, if there was no deal offered at all.
You, uh, missed a spot. Or, for one without a header, whether one can stop to piss in Albany without risking a felony. And it's not like these things are the only examples -- if I hadn't hit trans stuff separately, I'd be pointing out the entire circuit where the ADA now covers gender identity disorders, despite the explicit text of the ADA excluding that by name!
By which you mean they issued a NPR, and then changed basically zip in response to significant public comment.
The statute, for whatever it matters, does not cover all pregnancy-related matters: it covers "pregnancy, childbirth, or related medical conditions." It's... actually not that hard to notice the difference between a medical procedure and a medical condition.
Maybe that difference shouldn’t on net matter, or the doctrine of constitutional avoidance should rule. There's perfectly good fairness or policy reasons that it should, and perhaps in a world where the text was about pregnancy-related anythings and conservatives had eaten the administrative agencies, I'd be making arguments that they're betrayed trust in an important compromise.
And yet we're here.
Yet rather than the answer to "It's no big deal" being "fine, then let me win" instead, we find that everyone insists it is both necessary and obvious, no matter how much they have to play with statute's language to get the job done.
Indeed, even were there some central case that were vital or some symbolic victory that should be a big deal to the progressive movement and a trivial one to conservatives, the religious freedom concerns that the EEOC itself claims never happen still can't get a "fine, then let me win". While "The Commission also received tens of thousands of comments asserting that giving certain accommodations for pregnancy, childbirth, or related medical conditions, such as providing leave for abortion, infertility treatments, or contraception, would infringe upon the employer's religious freedom", the final rule gloss over any serious management or standard of those concerns, leaving such questions open to "defenses using a case-by-case analysis" and motioning to a statutory defense that only protects religious organization's ability to hire people of that religion.
((Spoiler: there's few cases only because everyone paying attention knows defending against a suit is high-risk and staggeringly expensive, and there's absolutely no guarantee that the vague religious freedom exceptions might apply until very late in appeals, so the EEOC can get 99.9% of the impact just by noisily threatening enforcement and then shrugging that their political opponents leave the entire topic like a landmine.))
Not only could I, eighteen thousand people did, as Halbrook points out in his link, but you're right to say that, too, is besides the point. The ATF and APA do not care about the little people. But it does make this rhetorical question more than a little obnoxious.
But Congress did not write a law saying that you can not sell firearms as a hobbyist; it wrote that you needed an FFL to sell firearms to "predominantly earn a profit", and the ATF decided that included firearms sales that included a profit at all, or even if they didn't have a profit but might be motivated by the money. Congress has not even modified the statutory requirements for provisioning an FFL in decades! And I'll point again to the ATF happily ignoring the strict text of the statute whenever it decides that it knows best.
When you write that the government really doesn't like them, that's true in the sense that 'the government' means progressives, operating under a presumption that compromise means progressive interests get a large portion of what they demand, and conservative interests get fucked, and not in the fun way.
I can separately argue that the law was badly intended, but I don't think there's anything insightful to point out that people want to ban guns entirely and make being an FFL as difficult as possible and impossible for many. Yes, duh, I predicted that literally before Biden was sworn in as President, I can't pretend to be surprised today. Props to you for at least admitting that the whole point is make onerous rules that drive hobbyists and part-timers from the field, but it isn't exactly some deep cover.
No, the problem as I'm trying to highlight is that there is a group of people who claimed at length that this was -- as held in the name -- a Bipartisan compromise that would include both further restrictions and clarifications protecting gunnies, and this didn't happen at all. The statute still explicitly recognizes private sales, but the ATF doesn't actually recognize any way to clearly comply with it in this rule-making.
In many ways, they would have been better served by flipping anyone who offered claimed concessions the bird. It matters, that for many, that is increasingly clear.
It... actually was a pretty big controversy back in the 2008-2012 timeframe, as activists had begun disrupting church services, while both feds and state officials left the matter to civil litigation. The ADF actually brought suit with some limited success in that case, though both the org and the individuals were basically judgement proof.
At the same 2008-2012 timeframe, the DoJ was highlighting increased use from the pre-Obama framework where it was largely perceived as targeting bad actors on the scale of arson or bombings. If you want to rest your argument on the masterful control of the DoJ Trump demonstrated, I hope you have fun, but I'm gonna have a hard time taking it seriously.
The information that we can't see or find or read, even presuming it actually exists, does not actually do a good job of protecting trust, especially given the extent this glosses over a wide variety of other stuff in the reporting (Nota spraypainting an employee's face and threw a rock at them, and also spray-painted a police car). The lack of SWAT, I am sure, has a similarly plausible and similarly unprovable charitable explanation.
Indeed, yes, the guy who didn't destroy property or spraypaint anyone in the face could have gotten a plea bargain. Of course, Houck was found not-guilty, while Nota was caught spraypaint-handed. Interestingly, we do happen to have another example I linked where the people were actually guilty of a FACE Act violation against abortion clinics, and one of the protestors plead guilty, turned government witness, and got 10 months in prison for her plea deal.
Yes, I'm sure there's some post-hoc way that This One Is Different. There might even be ways to argue it that doesn't look hilariously biased (Davis conspired to block a hallway! something something sentencing guidelines! two counts, because Nota didn't do two illegal things at once!), though I'm not optimistic. But the readiness that people defending these disparities can discover that it is impossible to evaluate the merits or compare in any statistically meaningful way are starting to echo.
In case anyone else is put off by the volume of other links, I want to point out that this was a particularly amusing little rabbit hole to go down, despite my disinterest in most of the NixOS drama.
[Demand for codifying mandatory apologies to anyone who makes a claim of having been hurt]
[Pointing out that the validity of each claim might be an important detail]
[Doubling down, insisting that "if your mindset is already in that kind of detail" you're probably not "productive"]
[Pointing out that this kind of insult is hurtful and should deserve an apology]
[crickets chirping]
They might as well save some bytes and replace the CoC with "Who, whom?". That would also give them more time to focus on software, if somehow they retain any of the detail-oriented people you need to write decent software.
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