Where Law Meets Regulation

01 February 2017

A Facebook friend posted the following:

This morning I heard a commentator say something like this, “The new administration wants to get rid of existing regulations and make it almost impossible to enact new ones. What they don’t understand is that regulations are what make the government function.”

I don’t have one word for my reaction to that. I’m astounded. I’m baffled. I’m horrified. I’m dismayed.

Isn’t our government supposed to function through legislation, passed by the congress, signed into law by the president, and tested (if necessary) by the courts?

And just because it isn’t, does that mean it shouldn’t be? If everything is regulation by administrative fiat, haven’t we abrogated our liberty to an unaccountable government?

And you know what, I totally get the sentiment. Where do those blankety-blank bureaucrats get off on sticking their noses into everything. Nobody elected them…

It’s the perfect feel-good, low risk, anti-government rant.

But, it turns out, I personally have a bit of experience with a very small, very narrow part of federal law, and the regulations that surround it. So, here is an explanation

(By the way, the TL,DR is this… the “LAW” as passed by Congress rarely specifies implementation details so those are set by administrative rulemaking in the Executive branch.)

U.S. Law regarding employment based immigration is set in chapter 8 U.S. Code section 1182 – Inadmissible Aliens. 8 USC 1182 (a)(5)(A) Labor Certification says in subsection (i)

In general - Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

So – If I, as an employer, want to hire a worker from overseas, I have to prove two things to the Secretary of Labor. First, there is a shortage of workers in that field. Second, my employing a chef from France for example, will not adversely impact the wages and working conditions of chefs that are already here. How on earth am I as the employer supposed to prove that, or the Secretary of Labor supposed to evaluate my proof?

This is where LAW meets REGULATION.

Let’s just take the last thing that an employer is supposed to prove and the Secretary of Labor is supposed to certify. “Employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.”

  • What does it mean to be “similarly employed”?

  • What does it mean to “not adversely affect the wages”?

  • What things are part of the “working conditions”?

  • And what proof would be required to show any of those three?

The law itself doesn’t set any of that. Congress could have defined those terms and set cutoffs, but they didn’t and they hardly ever do.

So, what is the Secretary of Labor supposed to do? Well, first, the Secretary of Labor is responsible for a whole bunch of other laws besides this one, and there are literally hundreds of thousands of these cases every year. So, the Secretary creates an Office of Foreign Labor Certification, and staffs it. That staff still can’t answer the questions above, so they convene a committee made up of economists, statisticians and legal experts. That committee meets for over a year to come up with definitions and cutoffs and valid sources of documentation. They set an appeal process for when an employer thinks they have provided proof and the Department of Labor says “Nope – you hire one more Indian IT worker and it’s going to screw the America workers.”

That committee writes all of this down, and the lawyers on the committee fight with general counsel over whether the guidelines are clear enough, specific enough and enforceable. When all of those lawyers are happy, some poor clerk has to type everything up and submit it to the Federal Register.

These proposed regulations are then vetted by the public. And by the way, if you’ve never held a copy of the federal register, well, you have missed out on some light bedtime reading… But I digress. There will be a specific review and comment period for the proposed regulations. If nobody feels strongly and leaves comments, then we are all done and the regulations go into effect. Far more frequently, various individuals and especially special interest groups get involved (like immigration lawyers) and they leave a TON of feedback. This has to be reviewed by the committee and analyzed by the lawyers again. Often, there has to be specific answers made public to the concerns raised in the comment period.

Eventually, the internal lawyers are satisfied that the regulations meet the intent of the law, and they go into effect. Frequently, the special interest groups will immediately sue to stop the regulation. So at this point we have all three branches of government involved – Congress who wrote the law; The Executive that wrote the regulations so they can implement the law; and the Judiciary who gets to rule whether the regulations are appropriate, or in rare cases, whether the law itself is constitutional. Sometimes the regulations are upheld and stay in effect. Sometimes the regulations are thrown out. Sometimes they are modified in a way that makes no one happy.

But, rest assured, the regulations never stay static, because next year some freshman congressperson gets a letter from a mad constituent about some law, and a bill amending the law, or specifying some other principle in a competing law gets introduced. Sometimes they will propose a bill that changes the actual wording of the regulation itself. Eventually the bill passes, and pretty soon someone is calling me (one of those economist/statistician types on the original committee) asking “why did we set the wage cutoffs like X when we could have done Y? I guess we ought to change the regulation…” You really don’t want to hear my answer…

And that is how you end up with 20 CFR 656.40 - Determination of prevailing wage for labor certification purposes. which, just to be clear, has been revised about 6 times since I was involved in writing a major revision in 1998.

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Podcasts

23 August 2016

I ride my bike to work most days. It’s usually a 50-60 minute ride each way. When I don’t ride a bike I take a bus and train that takes roughly the same amount of time. On the bus and train I used to read all the time, but you can’t do that on the bike. Years ago I started listing to podcasts through one earbud while I ride (keeping the other ear free to listen for traffic - I’m not totally crazy).

Over the last couple of days I’ve found myself talking about what podcasts I listen to most frequently. I tend to rotate through some NPR news and storytelling episodes, some Mormonism episodes, and some lefty political episodes. In the spirit of scaling my communication, I thought I would put a list of the general entertainment, news and religion podcasts I subscribe to here so I could just point people to this post. For the list of developer shows I subscribe to check out my AgileCoder blog.

So, here it is. My list of favorite podcasts:

News, Politics & Storytelling

Religion & Mormon Culture

  • Maxwell Institute Podcast: 2-3 times a month - Incredibly deep and wide ranging Mormon Studies topics.
  • Leading LDS: Roughly Weekly - Former bishop interviews people in a diverse set of leadership role about common challenges and suggestions to become a better leader.
  • Latter-Day Left: Roughly Weekly - Produced by the LDS Democratic Caucus, center-left politics discussed by active LDS members.
  • Mormon Discussion Podcast: Roughly Weekly - Lots of “dealing with doctrinal, historical and cultural difficulties” episodes. Similar to the Maxwell Institute, but without the restrictions of being sponsored by BYU. So they will have guests and “faith transition” topics occasionally that many mainstream Mormons would consider questionable, or even apostate. That said, the N.T. Wright lectures on The Historical Jesus, episodes part 1, part 2, part 3, & part 4, are quite possibly the best 4 hours I have ever spent listening to a podcast.

Cheesy Potato Soup

12 February 2016

We’ve made this simple slow-cooker creamy and cheesy potato soup a couple times lately so I thought I would add it here

Ingredients

8-10 Medium Potatoes - peeled and diced
2 Tbsp Minced Dried Onion
2 Tbsp Celery Flakes
2 tsp Minced Garlic
3 C Water (may need a little more to cover the potatoes)
2 Cubes Chicken Bouillon
2 1/2 C Milk
3 Tbsp Butter
1 - 2 Tbsp Flour
1/2 tsp Dried Thyme
1 - 2 C Grated Sharp Cheese
Salt and Pepper to taste.

Directions

Place potatoes, onion, celery, garlic, water, and bouillon in a 4-5 quart slow-cooker. Cover and cook on low for 5-6 hours until potatoes are tender. Use a potato masher to coarsely mash the potatoes.

In a small pan create a roux by melting the butter and whisking in the flour until smooth. Add the milk and continue whisking until the milk is warm.

Stir the milk into the mashed potatoes slowly. Add cheese, thyme, sale and pepper and cook on low another 30 minutes.

Creamy Tortellini Soup

15 January 2016

I don’t know if I will ever build a consistent habit of posting updates here, but at the least I want to occasionally add some of the recipes that Jenna and I are making and enjoying.

Today’s recipe is for an incredibly easy but very tasty Tortellini Soup with spinach.

Ingredients

1 Pkg Frozen Tortellini (16 - 20 oz)
1 Bag Baby Spinach (6 - 10 oz)
2 14oz Cans Italian Style Diced Tomatoes (do not drain)
4 C Vegetable or Chicken Stock 1 Block Cream Cheese

Stovetop Directions

In a large saucepan or pot combine the stock and tomatoes with juice and bring to a boil. Add tortellini and reduce heat to simmer. Dice the cream cheese, add to the soup and stir until blended. Add spinach slowly. Simmer for another 10-20 minutes.

Slowcooker Directions

Put all ingredients into a slow cooker, dicing the cream cheese. Stir well. Cover and cook on low 5-6 hours.

Stepping Away From Basketball

09 November 2015

Once again it’s been months since I last posted. Let’s get caught up.

Work

In July I went through a work transition again. I accepted an offer to move from supervising a sub-team working on Utah’s internal Unemployment Insurance processing system. The team I supervise now is commonly called “the Web Team”, but a better title is Enterprise Services Team. We are responsible for the overall look and feel of both the external internet and internal intranet sites for the Utah Department of Workforce Services. We also build and maintain about 50 web applications or web services that form a number of the core services provided by DWS.

On top of that work, we also have a contract to revise a “schools-to-careers” site called UtahFutures for a consortia of state and education agencies. This puts me in a position where I am essentially supervising two teams at once.

If that wasn’t a large enough challenge, the move also represents a big change in development technology for me. All of my past development has been done in the Microsoft stack of technologies. All but a few of the projects I now oversee are in the Java stack. It’s not a huge transition, but there is a bit of a learning curve before I will be fully productive.

Basketball Coaching

With all of the changes at work, and after 8 years of heavy involvement, I am stepping back from an active role as a HS Basketball Coach. Some of my favorite memories over the past years have been watching the growth and development both on and off the court of the over 100 players I had the privilege to coach. I hope that this is not the end of my coaching, but I felt like there was no way that I could devote the kind of time required to be successful at my primary career and also devote the kind of time and attention needed to be valuable to the coaching staff.

Cycling

I’ve been cycling to work again this year. At least I had been. That was before I crashed on a recreational ride on 9/17, breaking both my wrists. They have since healed, and I am cast free, but they remain weak and sore. Hopefully I can get back to consistent riding soon.


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