The Nation reports its analysis of the likely flow of power if the USSC decide to gut the power of federal agencies. Like I’ve commented before, the situation at present seems to be one where the USSC takes power to build and defend a corrupt authoritarian single-party state vs the autocrat Trump who is out for power for himself. The two seem to me to be on a collision course. TN writes:
We Are Witnessing the Biggest Judicial Power Grab Since 1803During a major hearing this week, the conservative justices made clear they’re about to gut the federal government’s power to regulate—and take that power for themselves
The Supreme Court heard two consolidated cases yesterday that could reshape the legal landscape and, with them, the country. The cases take on Chevron deference—the idea that courts should defer to executive agencies when applying regulations passed by Congress. They’re the most important cases about democracy on the court’s docket this year, and I say that knowing full well that the court is also set to decide whether a raving, orange criminal can run again for president, and whether former presidents are immune from prosecution for their crimes in the first place.
That’s because what conservatives [sigh, they are not conservatives, they are authoritarians] on the court are quietly trying to do is pull off the biggest judicial power grab since 1803, when it elevated itself to be the final arbiter of the Constitution in Marbury v. Madison. They’re trying to place their unelected, unaccountable policy preferences ahead of the laws made by the elected members of Congress or rules instituted by the president. If conservatives get their way, elections won’t really matter, because courts will be able to limit the scope of congressional regulation and the ability of presidents to enforce those regulations effectively. And the dumbest justice of all, alleged attempted rapist Brett Kavanaugh, basically said so during oral arguments.
I’m contractually obligated to tell you that the cases were technically about fees that fisheries are required to pay to federal observers. But all the justices talked about was Chevron deference. Only Justice Sonia Sotomayor even bothered to mention the fish, three hours and 20 minutes into a three-and-a-half-hour hearing.
Justice Katenji Brown Jackson also brought up what I think should be the dispositive point: She said that getting rid of Chevron deference was “impractical and chaotic.” It’s hard to emphasize this point enough. Without Chevron deference, every single agency rule is likely to be challenged in court by some disaffected party. And with no standard other than what judges think the policy should be, we’re going to end up with wildly different rulings about the same regulation, depending on which lower court (and especially which Trump judge) hears the case.
Solicitor General Elizabeth Prelogar and Justice Elena Kagan brought up the thousands and thousands of cases (over 17,000, according to briefs submitted to the court) that have been decided on Chevron grounds over the past 40 years. Potentially all of them could be up for re-argument should the court overrule Chevron. The conservative super lawyer Paul Clement, who was arguing against Chevron deference, promised this wouldn’t happen, but his reasoning was hypocritically thin. He said courts would still respect the precedents that happened under Chevron, even as he was arguing out of the other side of his mouth that the court should ignore the very precedent set by Chevron. His argument reduces to: “The leopards we unleash will only eat the right faces.”
TN explains that the term “Chevron deference” comes from a 1984 case, Chevron v. Natural Resources Defense Counsel. There, a provision of the Clean Air Act required manufacturing plants to get permits before increasing toxic emissions. The Environmental Protection Agency made a rule, pursuant to the Clean Air Act, that allowed some of these industrial plants to increase emissions in certain cases without a permit, and environmental groups sued. The USSC held that the EPA had the authority to make the rule and that the courts should “defer” to the judgment of executive agencies when acts of Congress are ambiguous or plausibly allow the agencies to make additional regulations.
As we all know by now, thanks to DP (me) harping on it so often, most of what Congress writes and passes is incoherent, ambiguous blither. With sloppy laws being common, Chevron deference amounted to a massive shift in power to federal agencies with professional and expert bureaucrats trying to figure out what Congress actually wanted and how to implement whatever it was based on their expertise. Congress does not have such expertise. And now that Congress is gridlocked and incapable of functioning, one can expect matters to worsen.** It is dominated by idiot, self-serving politicians concerned mostly with elections and re-elections.
** TN summarized it nicely like this:
What [justice Neil Gorsuch] understands is that Chevron deference is the key to running a modern administrative state. Congress is going to pass only so many laws (even fewer in times of government gridlock). Those laws are going to have ambiguity and gaps, because of both the political deals that are made to get the laws passed and Congress’s general incompetence. Chevron deference allows the executive agencies to fill in those gaps. Without it, only the courts can do that—and in many cases, those gaps won’t get filled at all. Without executive agencies with robust powers, it will be easier for companies to pollute the air and water, billionaires to cheat on their taxes, tech bros to monopolize markets, and mass shooters to buy restricted guns and ammunition.
That’s the world, and the power, Neil Gorsuch wants. .... That’s not a democracy, that’s a juristocracy, where our votes are suggestions until the judicial machine tells us what laws we’re allowed to have.
Kleptocratic autocracy vs kleptocratic plutocracy-theocracy
As best I can tell, if the USSC guts Chevron deference, the court will have to shoot down Trump’s run at dictatorship. In that case, kleptocratic plutocracy-theocracy will be ascendant and power will probably consolidate itself in that political framework. If Chevron is left intact, I suspect the USSC will probably let Trump off the hook and allow him to form a kleptocratic dictatorship. I think the former is more likely than the latter, but I just don’t have a feel of the odds for either outcome.
Obviously that is just my speculation. This could play out lots of different ways. Specifically all the elites could come to a power-sharing agreement in an outcome that is partly autocratic, partly plutocratic, partly Christian theocratic and fully kleptocratic. All parties involved will vehemently deny my speculations and say they are just humble, honest servants only doing what is constitutional and good for America, the American people and the whole world. So, don’t look to the elites to be even a little bit honest about any of this.
No comments:
Post a Comment