Tuesday, October 5, 2021

Major upcoming Supreme Court cases: Power grab alert!

Context
Two bits of stuff help put this fun discussion in context.

First bit: We all remember this from the scintillating Senate hearings in 2017 during Brett Kavanaugh’s delightful confirmation hearings.



Ben Sasse (R-NE) said this:  “. . . . . the people don’t have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

For the most part, Sasse is a far right radical fascist extremist, but in this instance he nailed it dead on. Congress does not like to legislate because it might upset some voters and imperil re-election. Sasse was frustrated because the refusal of congress to actually legislate competently and coherently shifts a huge amount of power from congress to federal agencies. Sasse, hates, hates, hates federal agencies, mainly because he hates government just as much. In large part, federal agencies are the federal government. His logic is impeccable. Except for the Department of Defense, federal law enforcement and federal courts to protect sacred property rights, Sasse wants to see most or all of them obliterated. One can certainly feel his pain and frustration.

Second bit: We all also remember how hostile fascist Donnie and his mendacious cadre of crooks and thugs were to the federal government. People like Betsy DeVos and Louie DeJoy were put in charge to destroy their agencies, Education Department and Post Office, respectively. The animosity was blatant.

It is a huge mistake to believe that the FRP (fascist Republican Party) is not radical and extremist in its animosity to the federal government and its intent to gut it. FRP hate of government is aimed at nearly everything, including Social Security, Medicare, Medicaid, food stamps, environmental regulations, workplace regulations, and on and on and on. The goal is to shift power to the business sector and the states and to shift wealth to elite White Christians and authoritarian White faux Christians, e.g., fascist Donnie, at the top of society.


Buggs bunny voice: Meeaaah, what’s on the docket, doc?
Yesterday, a segment on the NPR program 1A discussed some of the cases the Supreme Court has accepted for review and decision in this term. Given the court’s current political makeup, radical right fundamentalist Christian and staunch extremist Republican ideologue, one can pretty much guess what’s on the docket.

Obliterate abortion rights. Check.

Obliterate gun regulations. Check.

Obliterate campaign contribution regulations. Check.

Obliterate same-sex marriage rights. Check.

Obliterate environmental regulations. Check.

Obliterate federal agency power. Check.

Jaw drop!

Wait! What?? Obliterate federal agency power? Yes, check, check . . . . . . can't you read?


OMG, what fresh fascist hell is this!?
The court will hear an obscure case, Becerra v. Empire Health Foundation, which centers on FRP demands to limit the power of federal agencies to interpret congress’ often incomprehensible statute language. In the past, federal agencies had the Supreme Court’s blessing to do this based on a major 1984 case, Chevron.
Wikipedia: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers. The decision articulated a doctrine now known as the “Chevron deference.” The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: “whether the agency’s answer is based on a permissible construction [emphasis added] of the statute”, so long as Congress has not spoken directly to the precise issue at question.

Well, if congress writes a law that is ambiguous or incoherent, license to interpret it according to what can be seen as a “permissible construction” is shockingly broad. That is what Ben Sasse was complaining about in 2017. This is what the FRP refers to as the “deep state.” According to the FRP, the deep state is experts in federal agencies interpreting the incoherent slop that congress routinely produces in the form of statutes it passes. The court in Chevron decided that federal agencies with actual experts should turn incoherent congressional blither into at least semi-coherent regulations.

So, in the Becerra case, the FRP is asking the Supreme Court to reign in, or overturn Chevron, thereby neutering the power of federal agencies to recycle congressional garbage into something useful in the form of usually mostly understandable federal regulations.


Wait a minnit! What about power? Where will it go?
Usually power does not just go away. If the court does gut Chevron, the power that federal agencies used to have can go one of four basic places. It can revert back to congress, but since congress refuses to be competent and does not have the expertise even if it did try, power won’t go there. Besides, there are those pesky socialist-communist tyrant Democrats in congress who would interpret laws the wrong way if they ever got power. That’s no good.

Power could flow to the people, but as a whole, the American public seems to be a herd of uninformed, perpetually grumpy cats. That doesn’t seem to be a promising place for power to go. Besides, the FRP is authoritarian and wants power concentrated at the top, not distributed to the people. Power to the people is a non-starter.

What’s left? The private sector and the courts themselves.
 
The power could go to special interests who are affected by federal laws. They do have the experts needed to be coherent. Unfortunately, the business sector would make damn sure that federal law gets interpreted as they see fit, i.e., in social and environmental damage and profit-maximizing, and regulation and cost-minimizing ways. The business community would love that outcome and presumably so would the FRP.

According to the person A1 interviewed, Leah Litman a professor at U. Michigan law school, surmises that the FRP is angling for power to flow to the courts. The radical Republicans that dominate the Supreme Court would give legal interpretations the FRP and the business community would want. Even though the courts do not have the expertise to regulate, they would be free to decide case by case based on the briefs that the disputants submit. The courts would be free to decide in favor of Christian churches and the business community, which is what the FRP wants.

The segment that discusses the Becerra case is at 32:00-35:42 of the 47 minute 1A broadcast.


Questions: 
1. Should partisan political federal courts or experts in federal agencies interpret incoherent congressional language, or should congress actually try to do its job better? 

2. Is it credible to think that congress could ever obtain the expertise to regulate in complex areas, e.g., because congress is broken, or because the FRP hates government and has no intention of ever governing in the public interest?

3. Does this help bring into focus why the people that FRP elites coaxed fascist Donnie to put in power were there to attack and subvert the federal agencies they in charge of, not to make their agencies function better or work for the public interest? 

4. How good, bad or ambiguous a job has the MSM done on informing the American people of what the Supreme Court is up to? (here's one source, E&E News, that discusses some upcoming cases the Supreme Court has decided to hear[1])


Footnote: 
1. E&E News writes on how the radical right court thinks about environmental regulation: 
But the real blockbuster environmental battles could come through a series of pending petitions for the Supreme Court to get involved in legal fights over the scope of EPA regulations under the nation’s bedrock clean air and water laws.

“The fight about the environment at the Supreme Court significantly overlaps with the fight about executive power and agency power,” said Sean Marotta, a partner at the law firm Hogan Lovells. “What we see in the court’s environmental rulings is not so much strong feelings about the environment but fears of agency overreach.”
With the FRP, “agency overreach” is synonymous with the despised “deep state.”

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