Okay - I'm picking up what you're putting down (great analysis). Question though. This is clearly in appropriations bills as you cited, why then did the judge extend the TRO? Wouldn't the 22 plaintiff's in this case, say yo, the Trump administration can't do this because, well...the law??
I did read in the reporting of the judge's extension that she asked the government lawyer if they agreed there would be harm, and he replied, yes, but not irreparable. Seems similar-ish to the USAID situation. I'm confused why the very clear code of federal regulations isn't the justification to shut this down? What am I missing?
If TRUSK keeps the money spigot in the off position for a while, the research institutions will likely enthusiastically suggest adoption of new, lower rates. US STEM research and training of future scientists is a pillar of our society, economy and future. A little efficiency is not a bad thing either. Good luck to all.
I feel like you've skipped over the key step of the reasoning here. You keep talking about exceptions. Exceptions to what? In general, everything is legal, including imposing a limit on indirect costs, until someone writes a law that says it isn't. If this has been prevented in the past by budget language, and congress changes the budget language this time around, then for this to be illegal we need some other law that says it is illegal. All you've mentioned are "accounting regulations". Well, for those of us who are not accountants, which ones?
Also, your conclusion is that indirect costs "have to be negotiated with each university". Even if that's right, it's a procedural requirement, it shouldn't interfere with a substantive decision not to pay more than 15% or whatever. "We the NIH will not pay more than 15% in indirect costs. If you want the grant, you will have to meet us there." That seems like a perfectly valid negotiating position to me!
But the link you posted was to Federal Regulations; it's not Congressional Appropriations. There is a chance your position would hold up in the courts, but it isn't likely. This is a Constitutional issue, federal regulatory power is in the hands of the President. The President has also said publicly that the main issue he wants to change is Universities with large endowments funding admin with science grants. So this EO may not be a blanket change, it has some wiggle room for newer, smaller universities, and perhaps community colleges and such.
Of course, the Federal Register simply is the publication of federal agency policies and positions. In the forefront of those are the Executive Orders. That's a lot of authority, but changes should follow protocol:
How can I use the Federal Register to affect Federal rulemaking?
Federal agencies are required to publish notices of proposed rulemaking in the Federal Register to enable citizens to participate in the decision making process of the Government. This notice and comment procedure is simple.
A proposed rule published in the Federal Register notifies the public of a pending regulation.
Any person or organization may comment on it directly, either in writing, or orally at a hearing. Many agencies also accept comments online or via e-mail. The comment period varies, but it usually is 30, 60, or 90 days. In each Federal Register document, the issuing agency gives detailed instructions on how, when, and where a viewpoint may be expressed. In addition, agencies must list the name and telephone number of a person to contact for further information.
When agencies publish final regulations in the Federal Register, they must address the significant issues raised in comments and discuss any changes made in response to them. Agencies also may use the notice and comment process to stay in contact with constituents and to solicit their views on various policy and program issues.
There's an old saying "bad facts make bad law." Using taxpayer funds - including money borrowed from our children and their children - for large payouts to school administrator - who many perceive as the root cause of tuition inflation - is about the worst fact set I can think of. Best of luck with this argument politically; I suspect it will turn into a revision of law saying an overhead rate of zero is the default and any amount over that must be justified to a 50 person committee by a vote of at least 90% in favor plus deep audits of every cent of overhead spent currently and in prior years, a single pen being misused resulting in a federal criminal indictment.
Sure, but there would still be trouble. It would be relatively easy to change the regulations to allow for a flat rate, even if they follow the APA. Without the US Code to backstop them, regulations are fairly weak, especially if the judiciary continues down the path towards a “unitary executive”.
Okay - I'm picking up what you're putting down (great analysis). Question though. This is clearly in appropriations bills as you cited, why then did the judge extend the TRO? Wouldn't the 22 plaintiff's in this case, say yo, the Trump administration can't do this because, well...the law??
I did read in the reporting of the judge's extension that she asked the government lawyer if they agreed there would be harm, and he replied, yes, but not irreparable. Seems similar-ish to the USAID situation. I'm confused why the very clear code of federal regulations isn't the justification to shut this down? What am I missing?
If TRUSK keeps the money spigot in the off position for a while, the research institutions will likely enthusiastically suggest adoption of new, lower rates. US STEM research and training of future scientists is a pillar of our society, economy and future. A little efficiency is not a bad thing either. Good luck to all.
I feel like you've skipped over the key step of the reasoning here. You keep talking about exceptions. Exceptions to what? In general, everything is legal, including imposing a limit on indirect costs, until someone writes a law that says it isn't. If this has been prevented in the past by budget language, and congress changes the budget language this time around, then for this to be illegal we need some other law that says it is illegal. All you've mentioned are "accounting regulations". Well, for those of us who are not accountants, which ones?
Also, your conclusion is that indirect costs "have to be negotiated with each university". Even if that's right, it's a procedural requirement, it shouldn't interfere with a substantive decision not to pay more than 15% or whatever. "We the NIH will not pay more than 15% in indirect costs. If you want the grant, you will have to meet us there." That seems like a perfectly valid negotiating position to me!
But the link you posted was to Federal Regulations; it's not Congressional Appropriations. There is a chance your position would hold up in the courts, but it isn't likely. This is a Constitutional issue, federal regulatory power is in the hands of the President. The President has also said publicly that the main issue he wants to change is Universities with large endowments funding admin with science grants. So this EO may not be a blanket change, it has some wiggle room for newer, smaller universities, and perhaps community colleges and such.
Of course, the Federal Register simply is the publication of federal agency policies and positions. In the forefront of those are the Executive Orders. That's a lot of authority, but changes should follow protocol:
How can I use the Federal Register to affect Federal rulemaking?
Federal agencies are required to publish notices of proposed rulemaking in the Federal Register to enable citizens to participate in the decision making process of the Government. This notice and comment procedure is simple.
A proposed rule published in the Federal Register notifies the public of a pending regulation.
Any person or organization may comment on it directly, either in writing, or orally at a hearing. Many agencies also accept comments online or via e-mail. The comment period varies, but it usually is 30, 60, or 90 days. In each Federal Register document, the issuing agency gives detailed instructions on how, when, and where a viewpoint may be expressed. In addition, agencies must list the name and telephone number of a person to contact for further information.
When agencies publish final regulations in the Federal Register, they must address the significant issues raised in comments and discuss any changes made in response to them. Agencies also may use the notice and comment process to stay in contact with constituents and to solicit their views on various policy and program issues.
There's an old saying "bad facts make bad law." Using taxpayer funds - including money borrowed from our children and their children - for large payouts to school administrator - who many perceive as the root cause of tuition inflation - is about the worst fact set I can think of. Best of luck with this argument politically; I suspect it will turn into a revision of law saying an overhead rate of zero is the default and any amount over that must be justified to a 50 person committee by a vote of at least 90% in favor plus deep audits of every cent of overhead spent currently and in prior years, a single pen being misused resulting in a federal criminal indictment.
An indirect of nothing is still nothing, as long as the admin holds up grant reviews indefinitely.
Yes, thank you. . 35% of a funded grant is much better than 65% of nothing.
Sure, but there would still be trouble. It would be relatively easy to change the regulations to allow for a flat rate, even if they follow the APA. Without the US Code to backstop them, regulations are fairly weak, especially if the judiciary continues down the path towards a “unitary executive”.