March 15, 2017 nº 1,848 - Vol. 14
"The best way out is always through."
Robert Frost
Read Migalhas LatinoAmérica in Spanish every Tuesday and Thursday. Visit the website at www.migalhas.com/latinoamerica
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Should agencies decide law? Doctrine may be tested at gorsuch hearing
The confirmation hearing for the Supreme Court nominee, Judge Neil M. Gorsuch, is set for next week, and a sundry list of big issues is bound to be brought up. One involves an arcane legal doctrine known as Chevron deference, which many say will be crucial to the Trump administration's plans to tame the regulatory state. Chevron deference, named after the legal case from which it arose, Chevron USA. v. Natural Resources Defense Council, addresses what courts should do when Congress passes a law with an ambiguous interpretation. This happens more than you might think, involving laws from financial regulation to drug safety. The Dodd-Frank Act alone requires 390 rules to be promulgated, with the Volcker Rule by itself running 950 pages, including interpretations. In today's regulatory world, agencies often step in to fill the gap, putting forth their own interpretation of a statute. The principle of the Chevron case says that a federal court will defer to a federal agency's views.
One rationale for this doctrine is that an agency, with its expertise, is better positioned than a judge to know a statute's meaning. It may sound rather innocuous and bland, but it speaks to separation-of-power issues, as well as to how much power we want to give the administrative state, the array of federal agencies that administer and promulgate regulations. The Washington of today is not the government of the founders. In the time of George Washington, there were only three cabinet departments. Today, there are 15 cabinet-level departments, more than 430 agencies and other entities, and about 1.4 million civilian employees. This big bureaucracy is not necessarily a bad thing. The economy is much bigger and more complex than it was 200 years ago. A large and diverse economy needs regulation. And while the Trump administration has promised to reduce the bureaucracy as many presidents have before, it is hard to see the modern economy running without some degree of regulation, whether it concerns the security of banks or the safety of food and drugs. This is where Chevron deference comes in. Arguably, it transfers some power from the judicial branch to the administrative state, privileging its interpretations of the law, whether they involve alcohol containers or New York’s water supply. As a result, it has been criticized as "creating an unaccountable fourth branch" of government. And it has become the target of conservatives intent on reducing the power of regulators. The House even has a pending bill intended to get rid of Chevron deference.
Commom law
In this new article, Rita de Cássia Carvalho Lopes, lawyer at Carvalho Lopes Advogados, talks about the eventual influences of common law on the Brazilian legal system. (Click here)
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Who's up, down and out at China's congress?
China's National People's Congress is largely a rubber stamp for policy but it is still closely watched for indications of who is on the rise or on the way out in Beijing.
China's political propaganda gets a digital makeover
China has been trying and failing for years to get its people, especially its young people, to care about its political system. Could it now be close to working out how to do just this? Every March, the National People Congress, China's biggest annual political event, goes virtually unnoticed by the vast majority of the Chinese people. As the propaganda platform shifted from rice paper to LED screens, the government has developed new tricks. No stone has been left unturned in this unprecedented campaign to reach the digital masses. Even foreigners have been recruited to help, possibly in the hope that foreign faces will help engage a foreign audience too. Critics say it's the same old propaganda, just on new platforms.
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Minera
La CSJ de Chile revocó el Plan de cierre Temporal de la mina Pascua-Lama un proyecto de la multinacional minera Barrick. Se trataba de un acuerdo obtenido por la compañía con el Sernageomin y que le permitía importantes ahorros de capital. (Presione aquí)
Arbitraje
El grupo español Gas Natural tiene previsto presentar una demanda ante el tribunal arbitral del Banco Mundial, CIADI, por la decisión de la Superintendencia de Servicios Públicos colombiana de liquidar su filial Electricaribe. (Presione aquí)
Theresa May hails 'defining' Brexit moment
Parliament's backing for the government's Brexit bill will be a "defining moment for our whole country", Theresa May has told MPs. The prime minister said her timetable of triggering formal negotiations by the end of March remained on track. Brexit, she said, would "work for the whole of the United Kingdom", adding: "That's why we have been working closely with the devolved administrations, including the Scottish government - listening to their proposals and recognizing the many areas of common ground, such as protecting workers’ rights and our security from crime and terrorism. "So this is not a moment to play politics and create uncertainty - it's a moment to bring our country together, to honor the will of the British people and shape for them a better Britain."
Employers' hijab ban isn't 'direct discrimination,' European Court says
Workplace bans on the wearing of "any political, philosophical or religious sign" such as headscarves need not constitute direct discrimination, Europe's top court has ruled. But the ban must be based on internal company rules requiring all employees to "dress neutrally", said the European Court of Justice. It cannot be based on the wishes of a customer, it added. This is the court's first ruling on the wearing of headscarves at work. The Court said "an employer's desire to project an image of neutrality towards both its public and private sector customers is legitimate" - but national courts had to make sure this policy of neutrality was applied equally to all employees. The issues of Muslim dress and the integration of immigrant communities have featured prominently in debates in several European countries in recent years. Austria and the German state of Bavaria have recently announced bans on full-face veils in public spaces. Rights group Amnesty International said Tuesday's ECJ rulings were "disappointing" and "opened a backdoor to... prejudice". (Click here)
Donald Trump 2005 tax return leaked
Trump paid $5.3m in federal income tax and an extra $31m in alternative minimum tax on more than $150m income in 2005, a leaked partial tax return shows. Two pages of the tax return were revealed by US TV network MSNBC but they gave no details on income sources or of charitable giving. The White House said publishing the tax return was against the law. Trump refused to release his tax returns during the election campaign, breaking with a long-held tradition. He has said he is under audit by tax authorities and that his lawyers advise against releasing tax returns. His critics, however, say they suspect Trump has something to hide. (Click here)
Brazil prosecutor widens corruption probe
Brazil's top prosecutor has asked the Supreme Court to open 83 new investigations into politicians as part of a long-running corruption probe involving state oil giant Petrobras. The names were mentioned in plea bargain testimony of former executives of construction firm Odebrecht, but have not been made public. It is unclear if they include ministers in President Michel Temer's government. The Operation Car Wash investigates overpriced contracts at Petrobras.
Trump healthcare plan 'will strip insurance from 14 million'
An estimated 14 million people would lose insurance coverage in 2018 under the new Republican healthcare plan, according to a budget analysis. The long-awaited Republican plan was assessed by the Congressional Budget Office, a nonpartisan group of budget analysts and economists. The CBO said the added number uninsured would rise to 24 million by 2026. Trump, who backs the new plan, had pledged while campaigning that no-one would lose their insurance. The CBO reports also found that the bill would reduce the federal deficits by $337bn over the 10-year period. Those savings could help House Republicans sell the new legislation - known as the American Health Care Act - to some conservatives who remain skeptical about costs.
Pakistan PM: blasphemy on social media must be punished
Pakistan Prime Minister Nawaz Sharif stated on Tuesday that blasphemy is an "unpardonable offense" and ordered the state to remove such content from social media. In a Twitter post through the Pakistan Muslim League-Nawaz account, Sharif directed Interior Minister Ch. Nisar Ali Khanthat to bring to justice all those who have posted blasphemous comments. Because the issue is before the Pakistan courts, he stated that all steps should be taken in conformance with guidance from the court.(Click here)
Colombia congress approves transitional justice system
The Colombian Senate Monday approved a transitional justice structure that will attempt to bring reparations to the more than 8 million victims of the decades-long conflict between the Colombia government and the Revolutionary Armed Forces of Colombia (FARC). The new system will include a Transitional Justice Tribunal, a Truth Commission and a Missing Persons section, all aimed at punishing war crimes and gaining reparations for victims. The vote was 60-2 in the Senate, with all 40 members of the Democratic Center party boycotting the vote. The bill must now be approved by Colombia's Constitutional Court before it can take effect.
Rex Tillerson 'used email alias' at Exxon to talk climate change
US Secretary of State Rex Tillerson, the former head of Exxon Mobil, used an alias email address while at the oil company to discuss information related to climate change, the New York attorney general says. Eric Schneiderman says Tillerson used an account named "Wayne Tracker" for at least seven years. Wayne is Tillerson's middle name. Schneiderman is investigating whether Exxon misled investors and the public about climate change. In a letter to a New York state judge overseeing the investigation, the attorney general said the company had not previously disclosed the account, which was also used to discuss other issues. The attorney general also said Exxon had produced some 60 documents bearing the "Wayne Tracker" account but never said it was used by Tillerson.
Francois Fillon placed under formal investigation
French presidential candidate Francois Fillon has been placed under formal investigation over an alleged diversion of public funds, prosecutors say. The center-right contender is suspected of paying hundreds of thousands of euros to his family for work they may not have done. He denies wrongdoing, but had earlier said he would quit the presidential race if placed under investigation. Until recently, he was the favorite to win the elections in April and May.
Florida governor signs new death penalty law requiring unanimous decision
Florida Governor Rick Scott signed a new bill on Monday declaring that the death penalty may only be imposed by a judge upon unanimous recommendation from the jury. Florida's executions have been on hold since January 2016, when the US Supreme Court held that the state's death penalty law violated the Sixth Amendment by allowing judges to override jury recommendations.
Egypt prosecutor: Mubarak to be released from detention
An Egyptian public prosecutor announced on Monday that former president Hosni Mubarak will be released from detention in a military hospital. During a retrial this month, Mubarak, who was overthrown in 2011, was cleared of conspiracy to murder protesters during the 2011 uprising, for which he had been sentenced to life in prison. Mubarak had also been convicted of embezzlement, but the public prosecutor found that he had already served his sentence. According to his lawyer, Mubarak will be returning to his home in Heliopolis.
Trump picks a regulator who could help reshape Dodd-Frank Act
J. Christopher Giancarlo was selected to run the Commodity Futures Trading Commission, which regulates the sort of derivatives trading that spread panic on Wall Street in 2008.
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